author: Lavery, J.

text:
    Angela Kolaniak v. Board of Education of the City of Bridgeport et al.
    (10204)
    Dupont, C. J., Norcott and Lavery, Js.
    Argued February 20
    decision released July 14, 1992

      Robert G. Zanesky, associate city attorney, with whom were William Skiptunas and Mark Tagliatela, legal interns, and, on the brief, Barbara Brazzel-Massaro, city attorney, for the appellants (defendants).

      Vincent M. Zanella, Jr., with whom was Wayne W. Schmidt, for the appellee (plaintiff).
   Lavery, J.

The defendants appeal from the judgment rendered, after a jury trial, awarding $67,000 to the plaintiff. On appeal, the defendants claim that the trial court improperly charged the jury in that it failed to instruct on (1) the special defense of governmental immunity, (2) the status of the plaintiff while present on school property, and (3) the duty and standard of care the defendants owed to the plaintiff. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The plaintiff was a student in an adult education program for which classes were held at Central High School in Bridgeport. On January 25, 1985, the plaintiff arrived on school grounds at approximately 7:15 p.m. At that time, it had begun to snow, and the plaintiff noticed patches of ice along the walkway leading to the classroom building. At approximately 9:15 p.m., the plaintiff was leaving the class. Although she noticed that the entire walkway was covered with snow, she continued down the walkway. She subsequently slipped and fell on an accumulation of snow or ice on the walkway. The plaintiff suffered physical injuries from the fall and commenced this action.

Prior to the winter months, the board of education had issued a bulletin to all custodians and maintenance personnel in Bridgeport indicating that the walkways were to be inspected and kept clean on a daily basis. The defendants John Domeracki and Eugene Plude were on duty as maintenance workers the night the plaintiff fell. While on duty, it was their responsibility to keep walkways clear of snow and ice. Although there were shovels kept on the school grounds for snow removal and a supply of salt and sand, there was no evidence that the walkway in question had been shoveled, salted or sanded prior to the plaintiffs fall.

Plude testified that if precipitation fell on the walkways and began to freeze, maintenance staff would put down salt and sand to keep snow and ice from accumulating at a rapid rate. On the date of the plaintiffs fall, however, neither Domeracki nor Plude could recall putting down any sand or salt.

The defendants first claim that because the defense of governmental immunity is a question of fact, it was improper for the trial court to have charged the jury that governmental immunity was not applicable to the case as a matter of law.

Connecticut appellate courts have previously approved the practice of deciding the issue of governmental immunity as a matter of law. Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988). In Gordon, for example, the court concluded that “the general deployment of police officers is a discretionary governmental action as a matter of law.” Id., 180.

“A municipality’s potential liability for its tortious acts is limited by the common law principle of governmental immunity. Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). Government immunity, however, is not a blanket protection for all official acts. For example, a municipality is immune from liability for the performance of governmental acts as distinguished from ministerial acts. . . . (Citations omitted.) Gordon v. Bridgeport Housing Authority, [supra, 167.]” (Internal quotation marks omitted.) Heigl v. Board of Education, 218 Conn. 1, 4-5, 587 A.2d 423 (1991). “ ‘Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. ... On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.’ (Citations omitted.) Gauvin v. New Haven, 187 Conn. 180, 184, 445 A.2d 1 (1982).” Heigl v. Board of Education, supra, 5. Generally, liability may attach for a negligently performed ministerial act, but not for a negligently performed governmental or discretionary act. Gordon v. Bridgeport Housing Authority, supra, 167-68.

The defendant asserts that because Domeracki and Plude had the responsibility of deciding whether there was sufficient accumulation to begin clearing the walkways, they were performing a discretionary function, and that, therefore, the jury should have decided whether the doctrine of governmental immunity applied. A determination as to when to clear a sidewalk, however, is not a discretionary function. Every voluntary physical act necessarily requires some sort of preceding thought process and decision by the actor. In the present case, the board of education’s bulletin to all custodians and maintenance personnel was clear — they were to keep the walkways clear of snow and ice. We will not equate the act of clearing snow and ice by maintenance workers, in accordance with a directive by the policymaking board of education, with the policy decisions that are usually afforded protection by the doctrine of governmental immunity. We conclude that it was proper for the trial court to have decided that Domeracki and Plude were involved in a ministerial function as a matter of law. The refusal to charge on the doctrine of governmental immunity, therefore, was proper.

The defendants next claim that the trial court improperly failed to charge on the status of the plaintiff in relation to her presence on school property. “Ordinarily, the status of one who sustains injury while upon the property of another is a question of fact. . . . Where, however, the facts essential to the determination of the plaintiff’s status are not in dispute, a legal question is presented.” (Citations omitted.) Roberts v. Rosenblatt, 146 Conn. 110, 112, 148 A.2d 142 (1959); Morin v. Bell Court Condominium Assn., Inc., 25 Conn. App. 112, 115, 593 A.2d 147, cert. granted on other grounds, 220 Conn. 908, 597 A.2d 334 (1991).

A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. 2 Restatement (Second), Torts § 332. “Although an invitation in itself does not establish the status of an invitee, it is essential to it.” Corcoran v. Jacovino, 161 Conn. 462, 466, 290 A.2d 225 (1971). In this case, it is undisputed that the plaintiff was invited onto school grounds as a student in an adult education class. As such, she was a public invitee because she was invited to enter or to remain on the land as a member of the public for a purpose for which the land was held open to the public. 2 Restatement (Second), Torts § 332; see Corcoran v. Jacovino, supra, 465. It is clear from the facts presented that her status is that of an invitee. The trial court’s charge to the jury, although not specifically labeling the plaintiff an invitee, defined the duty that the defendants’ owed to her. Because the court properly set forth that duty, its failure specifically to set forth the plaintiff’s status is not harmful error.

Finally, the defendants claim that the trial court improperly failed to charge on the duty and standard of care that the defendants owed to the plaintiff. Our review of the record reveals that the court did in fact properly charge on the duty and standard of care. Because the plaintiff was an invitee, the defendants were under a duty to use reasonable care to maintain the premises in a reasonably safe condition. Warren v. Stancliff, 157 Conn. 216, 218, 251 A.2d 74 (1968). After a review of the jury charge, we conclude that the trial court's charge adequately defined the duty that the defendants owed to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs original complaint named, as defendants, Frank Kennedy, mechanic in charge of school maintenance for the city of Bridgeport; Walter Chop, director of school facilities for the city of Bridgeport; Eugene Plude, head of maintenance staff at Central High School; John Domeracki, supervisor of night custodial staff at Central High School; A1 McManus, night custodian at Central High School; and the city of Bridgeport.
      After the testimony at trial had ended, however, the case was withdrawn as to Walter Chop, A1 McManus and the city of Bridgeport by stipulation of the parties.

       The plaintiffs complaint was in three counts. The first count alleged negligence against Kennedy, Plude, Domeracki and McManus. The second count alleged that the Bridgeport board of education was delegated to pay any judgment rendered against the defendants in the first count pursuant to General Statutes § 10-235. The third count alleged that the city of Bridgeport was delegated by General Statutes §§ 7-101a and 7-465 to pay any judgment rendered against the defendants in the first count. See Kaye v. Manchester, 20 Conn. App. 439, 443-44, 568 A.2d 459 (1990).

       The trial court instructed the jury, in part, that “the defendant alleged that the operation and maintenance of this entrance to the school [provides the basis for] governmental immunity. I say to you, ladies and gentlemen, that the government in running the education and other policymaking, the board of education running the school and other — making other policy arrangements for the students does not include the maintenance of removing snow or ice or sanding. It is a ministerial act. It is not an act that is an every day discretion of the board of education. So, therefore, you will and must disregard that in your consideration against the plaintiff as alleged by the defendant.”

       We acknowledge, however, that there is also authority that supports the plaintiffs claim that whether an act is discretionary or ministerial is a question of fact for the jury. “‘Whether the act complained of . . . [are] governmental or ministerial is a factual question which depends upon the nature of the act complained of. . . .’ Gauvin v. New Haven, 187 Conn. 180, 186, 445 A.2d 1 (1982).” (Citations omitted.) Couture v. Board of Education, 6 Conn. App. 309, 311, 505 A.2d 432 (1986).

       Also, in Evon v. Andrews, 211 Conn. 501, 507, 559 A.2d 1131 (1989), the court concluded that the trial court’s granting of the defendant’s motion to strike the plaintiffs negligence count was proper because the defendant’s acts were governmental, not ministerial. Similarly, in Shore v. Stonington, 187 Conn. 147, 154, 444 A.2d 1379 (1982), the court concluded that summary judgment for the defendant was proper because the defendant’s acts were not ministerial nor did they subject an identifiable victim to imminent harm. See footnote 7, infra.

       We note that “distinctions between discretionary acts and ministerial acts are often controlling without regard to whether the duty is ascertained to be public or private.” Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 170, 544 A.2d 1185 (1988).

       Even if an act is governmental or discretionary, liability may nevertheless attach: “first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; see, e.g., Sestito v. Groton, 178 Conn. 520, 528, 423 A.2d 165 (1979); second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; see, e.g., General Statutes § 7-108 creating municipal liability for damage done by mobs; and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence. See, e.g., Stiebitz v. Mahoney, 144 Conn. 443, 448-49,134 A.2d 71 (1957).” Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

       The court instructed in part: “Now, ladies and gentlemen, the question for you is . . . [w]ould the ordinarily prudent person in the defendants’ position, knowing what they know or should have known, anticipated that harm of the general nature of that suffered by the plaintiff was likely to result.... [A] place must be reasonably protected, against defects or dangers that may be in existence and may be anticipated that injury may result if that defect is not corrected or repaired. ” (Emphasis added.)


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Lynn F. Pickles
    (9817)
    O’Connell, Foti and Freedman, Js.

      Argued February 18
    decision released July 14, 1992

      Edward T. Lynch, Jr., with whom was Joyce Antila Phipps, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Phillip Scarpellino, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The first count of this two count information charged the defendant with misconduct with a motor vehicle in violation of General Statutes § 53a-57. The jury convicted the defendant of the lesser included offense of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a. After the jury verdict was received, the trial court found the defendant guilty of the second count, which charged her with the infraction of failure to obey a traffic control sign in violation of General Statutes § 14-298.

On appeal the defendant raises eight issues that she claims mandate reversal of her conviction. We do not agree and affirm the judgment of the trial court.

The jury and the trial court, as respective factfinders on the individual counts, could reasonably have found the following facts. On November 18,1988, the defendant was driving a nine ton dump truck in performance of her duties as a department of transportation (DOT) employee. These duties included hauling dirt and debris from the vicinity of exits 41 and 42 on 1-95 to a dump-site. Because the defendant was unfamiliar with this area, on her first trip she followed another DOT truck. This route involved leaving 1-95 at exit 43 which was posted pursuant to General Statutes § 14-298 so as to prohibit its use by trucks. On a subsequent trip, the defendant was traveling the same route when a traffic signal at the bottom of the ramp was turning from green to red. In an effort to make the light while it was still green, the defendant operated the truck at a speed that made it impossible to negotiate the turn at the bottom of the ramp. The defendant swung her vehicle to the right causing the truck to overturn onto its left side. The truck landed on a small passenger car, killing the driver and seriously injuring a passenger.

I

Sign Violation

Because both counts involve an allegation of a violation of a state traffic control sign, she challenges her conviction on both counts by attacking the validity of the sign violation. Because the first count involves the second count, we will commence our analysis with a discussion of the second count. Of the several claims addressed to this court, only the due process and ex post facto claims were argued before the trial court. Claims that were not distinctly raised at trial are not reviewable on appeal. State v. Tillman, 220 Conn. 487, 504, 600 A.2d 738 (1991). Accordingly, we decline to review claims one through four and claim seven. We also note that they do not qualify for Evans-Golding review, nor do they rise to the level of plain error. Practice Book § 4185; Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 59, 594 A.2d 981 (1991).

The state argues that the due process and ex post facto claims are also not reviewable because, although they were raised in the trial court, they were not asserted in accordance with the rules of practice and are therefore deemed to be waived. We agree.

The gravamen of the defendant’s due process claim is that General Statutes § 14-298 is unconstitutional because it fails to provide sufficient notice of the proscribed conduct. The law requires that penal statutes be sufficiently explicit so that persons who might be affected by them will know what conduct will constitute a violation. Miller v. Florida, 482 U.S. 423, 429-32, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987); State v. Mattioli, 210 Conn. 573, 579, 556 A.2d 584 (1989). Whether § 14-298 gives sufficient notice of the conduct it prohibits does not require a trial. Practice Book § 808 mandates: “Any defense . . . capable of determination without a trial of the general issue may be raised only by a pretrial motion made in conformity with this chapter.” (Emphasis added.) Practice Book § 810 provides in part: “Failure by a party, at or within the time provided by these rules, to raise defenses or objections . . . that must be made prior to trial shall constitute a waiver thereof, but a judicial authority, for good cause shown, may grant relief from such waiver . . . .” Practice Book § 811 requires that pretrial motions shall be filed “not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the court, at such later time as the judicial authority may fix. . . .” In the present case, the defendant failed to file her motions to dismiss on due process grounds until after the close of all the evidence. Further, at no time did the defendant attempt to show good cause to the trial court as to why she should have been allowed to file a late motion. By failing to raise the due process defense by a timely pretrial motion, the defendant waived her right to raise such a defense later.

The defendant also claimed that application of General Statutes § 14-298 constituted an ex post facto law in violation of the United States and Connecticut constitutions. For the above stated reasons and because her motion was made orally and not in writing as required by Practice Book § 812, we decline to review the ex post facto claim as well as the due process claim in regard to the second count. Accordingly, there is no claim regarding the second count that is entitled to review.

II

Negligent Homicide

The first count charged the defendant with misconduct with a motor vehicle in violation of General Statutes § 53a-57. The substitute long form information particularized that the defendant operated “her motor vehicle, namely a D.O.T. truck, with criminal negligence by using exit 43 off of Route 95 northbound in clear violation of a state traffic control sign prohibiting trucks from using such exit, [and] by attempting to run through a traffic light which for her was changing from green to red, thus causing her vehicle to operate at a speed that made it impossible to make the turn at the bottom of the exit causing her vehicle to overturn and fall upon a vehicle with two persons inside, one of whom, namely Frank Giamo, was killed as a direct result of her criminally negligent actions all in violation of § 53a-57 of the Connecticut General Statutes.” The jury convicted the defendant of the lesser included offense of negligent homicide with a motor vehicle. The propriety of negligent homicide as a lesser included offense is not disputed.

The first count alleged that the defendant was guilty of negligence in two distinct ways: (1) by violating the sign prohibiting use of the exit by trucks, and (2) by attempting to run through a traffic light, thus causing her vehicle to operate at a speed that made it impossible to make the turn. Proof of either allegation of criminal negligence would sustain the conviction.

Our discussion in part I disposes of any claim that we review the defendant’s conviction under the sign violation allegation of this count. Thus, the conviction can be affirmed solely on the basis of that allegation. Furthermore, if the death was caused by the defendant’s “attempting to run through a traffic light . . . thus causing her vehicle to operate at a speed that made it impossible to make the turn,” the conviction can also be affirmed on that basis, irrespective of any claim of impropriety based on the sign violation.

The trial court properly instructed the jury on the elements of negligent homicide with a motor vehicle, which did not include a requirement that the jury find a violation of the truck prohibition sign. The court stressed the statutory elements of both misconduct with a motor vehicle and negligent homicide with a motor vehicle in its initial instructions and in response to jury questions concentrating on the definitions of negligence and criminal negligence without referring to the traffic sign issue. Whether the evidence established the defendant’s guilt beyond a reasonable doubt was a question of fact for the jury and the jury resolved the question against the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-222a provides: “Any person who, in consequence of the negligent operation of a motor vehicle, causes the death of another person shall be fined not more than one thousand dollars or imprisoned not more than six months or both.”

       General Statutes § 14-298 provides in pertinent part: “Said commission shall also make regulations, in cooperation and agreement with local traffic authorities, respecting the use by through truck traffic of streets and highways within the limits of, and under the jurisdiction of, any city, town or borough of this state for the protection and safety of the public. If said commission determines that the prohibition of through truck traffic on any street or highway is necessary because of an immediate and imminent threat to the public health and safety and the local traffic authority is precluded for any reason from acting on such prohibition, the commission, if it is not otherwise precluded from so acting, may impose such prohibition. Said commission may place and maintain traffic control signals, signs, markings and other safety devices, which it deems to be in the interests of public safety, upon such highways as come within the jurisdiction of said commission as set forth in section 14-297. . . .”

       The defendant’s claims are (1) whether the trial court should have ruled that a Connecticut department of transportation (DOT) employee, who in the course of her duties as a state employee exits a limited access highway exit ramp, is engaged in highway maintenance operations in accordance with General Statutes § 14-290, (2) whether General Statutes § 14-290 implicitly includes an exemption from state traffic commission signs for DOT operators of maintenance vehicles to allow travel off an exit ramp posted “no trucks,” in the course of and in furtherance of state maintenance operations, (3) whether the trial court improperly applied state traffic commission regulations to the activities of a DOT employee engaged in the furtherance of state maintenance activities on a limited access highway when § 14-298-237 of the Regulations of Connecticut State Agencies exempted such activities, (4) whether the legislature intended, by General Statutes 5 14-290, to exempt operation of DOT maintenance vehicles engaged in state highway maintenance operations from Chapter 249 of the Connecticut General Statutes or the regulations adopted by the state traffic commission, (5) whether the trial court’s interpretation of performance of duties and maintenance operations constitutes an ex post facto application of a regulation or a statute in violation of the United States or Connecticut constitutions, (6) whether the application or statutoiy pattern of General Statutes § 14-290 and General Statutes Chapter 249 violates the due process clauses of the United States and Connecticut constitutions, and (7) whether the trial court should, as a matter of law, have found the defendant not guilty of the violation of the state traffic commission sign. The eighth issue, alleging that the trial court should, as a matter of law, have found the defendant not guilty of the violation of the state traffic commission sign before submission of the first count of the information to the jury was not briefed and is therefore considered abandoned. See Saradjian v. Saradjian, 25 Conn. App. 411, 418, 595 A.2d 890 (1991).

        State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because the defendant did not establish that “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt”; State v. Golding, supra, 239-40; Evans-Golding review would be improper.

       Practice Book § 4185 provides in pertinent part: “The [appellate] court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The [appellate] court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       Practice Book § 812 provides in pertinent part: “Pretrial motions shall be written unless, for good cause shown, the judicial authority shall grant permission to make an oral pretrial motion. ...” The defendant did not request permission to make an oral motion.


author: Landau, J.

text:
    State of Connecticut v. Dennis Dickerson
    (10373)
    Dupont, C. J., Foti and Landau, Js.

      Argued May 7
    decision released July 21, 1992

      Paul Martin Tymniak, with whom, on the brief, was David A. Kollmann, for the appellant (defendant).

      Richard F. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Steven Sedensky, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant, Dennis Dickerson, was convicted by a jury of six of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3). On appeal, he sets forth five claims, three involving the trial court instructions, one involving the trial court’s denial of his motion for a mistrial, and, finally, one involving the sufficiency of the evidence. With respect to the trial court instructions, the defendant claims that the court improperly instructed the jury regarding (1) the reliability of prior inconsistent statements admitted for substantive purposes under State v. Whelan, 200 Conn. 743, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), (2) adverse inferences and the defendant’s failure to testify, and (3) consciousness of guilt. We disagree with all of the defendant’s claims.

On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. On the evening of December 3, 1988, while returning home from a nearby supermarket along Martin Luther King Drive in Father Panik Village in Bridgeport, Tavares Cosby was shot in the left foot. Shots were being fired from the area around building thirty toward the area across the street around building twenty-six. At the time of the shooting, the victim was on the sidewalk between buildings twenty-nine and thirty and the victim’s companion, Raymond Lopez, who had just left the victim to return to his apartment in building twenty-six, was in the hallway of that building. After the shooting, Lopez flagged down his mother, Rosa Ortiz, who was driving toward their apartment. Ortiz drove the victim to the hospital where the large toe on his left foot was amputated.

At trial, the victim testified that he did not see who shot him, nor did he see the defendant at the time of the shooting, but that the shots came from the direction of building thirty. He also testified that he saw the defendant standing near the hallway of building thirty as he and Lopez walked by on their way to the supermarket. Lopez, who viewed the incident from the hallway of building twenty-six, and the victim’s mother, Marcellina Cosby, who viewed the incident from the window of her apartment in building twenty-nine, both gave sworn statements to the police indicating that the defendant shot the victim from the entranceway to building thirty.

I

A

PRIOR INCONSISTENT STATEMENTS

At trial, the court admitted prior written inconsistent statements of Marcellina Cosby and Lopez for substantive purposes under State v. Whelan, supra. The defendant does not challenge the admissibility of these statements. Rather, he asserts that the trial court’s instructions regarding the jury’s consideration of the statements were improper. The defendant filed a request to charge in which he sought, in part, the following instruction: “In this case, the state of Connecticut has introduced two prior written inconsistent statements. I caution you that though these statements have been admitted for substantive purposes, there is no absolute guarantee of reliability.” The trial court refused to give the requested charge, and, in the alternative, instructed the jury that it “can determine whether to believe the present testimony, the prior testimony or neither. Those statements are to be considered by you together with all of the evidence and you should give them such weight as they appear to be entitled to in view of all the circumstances under which they were made.” The defendant argues that because his request to charge was “relevant to the issues of the case and [was] an accurate statement of the law”; State v. Gabriel, 192 Conn. 405, 418, 473 A.2d 300 (1984); the trial court was obligated to give it. We disagree.

“It is well established that when a proper request to charge is filed [pursuant to Practice Book § 852] and the trial court has failed to charge the jury in the exact language of the request, the test is whether the court’s instructions properly covered the substance of the written request.” State v. Watlington, 216 Conn. 188, 198, 579 A.2d 490 (1990), citing State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); State v. Tillman, 220 Conn. 487, 500, 600 A.2d 738 (1991). “ ‘A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. State v. Gabriel, [supra]; State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980).’ State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). [Our Supreme Court] has often repeated that '[a] charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case.’ State v. Estep, 186 Conn. 648, 651, 443 A.2d 483 (1982); State v. Harris, 172 Conn. 223, 226, 374 A.2d 203 (1977); Amato v. Desenti, 117 Conn. 612, 617, 169 A. 611 (1933).” State v. Allen, 216 Conn. 367, 386-87, 579 A.2d 1066 (1990); State v. Jennings, 216 Conn. 647, 663, 583 A.2d 915 (1990); State v. Fernandez, 27 Conn. App. 73, 87, 604 A.2d 1308 (1992); State v. Toczko, 23 Conn. App. 502, 507, 582 A.2d 769 (1990). It is the trial court’s responsibility to instruct the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration under the offenses charged and upon the evidence. See State v. Watlington, supra, 199; State v. Harrell, supra.

Our review of the defendant’s claim requires that we examine the trial court’s charge in its entirety to determine whether it is reasonably possible that the jury could have been misled by the instruction as it was given. See State v. Ortiz, 217 Conn. 648, 662, 588 A.2d 127 (1991); State v. Allen, supra, 387; State v. Rollinson, 203 Conn. 641, 665, 526 A.2d 1283 (1987); State v. Utz, 201 Conn. 190, 209, 513 A.2d 1191 (1986); State v. Shindell, 195 Conn. 128, 143, 486 A.2d 637 (1985). “ ‘Whether a charge is possibly misleading depends on the substance rather than the form of what is said.’ State v. Stevenson, 198 Conn. 560, 571, 504 A.2d 1029 (1986); see State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991); State v. Kurvin, 186 Conn. 555, 565, 442 A.2d 1327 (1982).” State v. Ortiz, supra.

When the charge in the present case is viewed as a whole, it is clear that, although the trial court did not use the exact language of the defendant’s request to charge, the substance of that request was included in the charge given by the court. The essence of the defendant’s request to charge was to inform the jury that the prior statements were not inherently reliable and that it is not bound to accept them as fact. The instruction actually given by the trial court accurately conveyed the same theme to the jury. The instruction that the jury could consider the prior statement, the trial testimony or neither, depending on its view of the evidence as a whole and the circumstances under which the statements were made, clearly conveyed to the jury that it was free to determine independently the reliability of the past and present statements and that it was not bound to accept either one or the other as true. It is, therefore, not reasonably possible that the jury was misled. See State v. Ortiz, supra; State v. Dyson, 217 Conn. 498, 501, 586 A.2d. 610 (1991).

B

ADVERSE INFERENCE

The defendant next claims that the trial court’s instruction that no adverse inference could be drawn from the defendant’s failure to testify was insufficient. The following additional facts are necessary for our determination of this issue. Prior to instructing the jury, the trial court specifically informed defense counsel that it was going to instruct the jury regarding the defendant’s failure to testify as follows: “You may draw no unfavorable inferences from the accused’s failure to testify.” See General Statutes § 54-84 (b). Defense counsel asked if that was the entire portion of the charge that the court was going to give. The court responded in the affirmative. The defendant made no request for an additional instruction and the trial court instructed the jury in accordance with this conversation.

The defendant now claims that the court should have charged, in addition to the statutory language, that the defendant has an absolute right not to testify under the fifth amendment to the United States constitution. The defendant did not object to the instruction at trial and now seeks appellate review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Both our Supreme Court and this court have reviewed similar claims in the absence of an objection raised properly at trial. See, e.g., State v. Wright, 197 Conn. 588, 594-95, 500 A.2d 547 (1985); State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985); State v. Tatem, 194 Conn. 594, 595, 483 A.2d 1087 (1984); State v. Reid, 22 Conn. App. 321, 326, 577 A.2d 1073, cert. denied, 216 Conn. 828, 582 A.2d 207 (1990). General Statutes § 54-84 (b) “serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial.” State v. Sinclair, supra. The very nature of the no adverse inference instruction in this statute “is to dispel and ameliorate the inevitable speculation and to mitigate the damage to the defendant”; State v. Tyson, 23 Conn. App. 28, 43, 579 A.2d 1083 (1990); and “to reduce to a minimum any jury speculation as to why an accused would remain silent in the face of a criminal accusation.” State v. Smith, 201 Conn. 659, 662-63, 519 A.2d 26 (1986).

“No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can and must . . . use the unique power of the jury instruction to reduce that speculation to a minimum.” Carter v. Kentucky, 450 U.S. 288, 303, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). Our legislature has prescribed the language provided in General Statutes § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum. See State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986). For this reason, we have regularly characterized as error any but the most minor departure from the language required by § 54-84 (b). State v. Mebane, 19 Conn. App. 618, 623-24, 536 A.2d 1026, cert. denied, 212 Conn. 817, 565 A.2d 538 (1989); State v. Carpenter, 19 Conn. App. 48, 55, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989); State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

We conclude that the charge as given was appropriate. The trial court used the exact language of the statute. If the defendant felt that the trial court should have supplemented its instruction with the caveat that the defendant had a constitutional right not to testify, he could have requested that the court so modify the charge. In light of the defendant’s inaction, the trial court justifiably employed the language of § 54-84 (b). See State v. Wright, 197 Conn. 588, 594-95, 500 A.2d 547 (1985); State v. Tyson, supra, 44. The charge clearly informed the jury that it could not use the defendant’s silence as a factor in its verdict. Moreover, as well as charging in the exact language of § 54-84 (b), the trial court also instructed the jury that no presumption of guilt could be drawn, that the defendant was presumed innocent, and that it was the state’s burden to prove him guilty beyond a reasonable doubt. State v. Jackson, 23 Conn. App. 151, 156-57, 585 A.2d 694, cert. denied, 216 Conn. 823, 581 A.2d 1057 (1990). We cannot fault the trial court’s adherence to the statutory mandate.

C

CONSCIOUSNESS OF GUILT

The defendant’s final claim addressing the trial court’s charge to the jury focuses on the court’s instruction that a threat allegedly made by the defendant to the victim was relevant to show the defendant’s consciousness of guilt. The victim testified that almost two years after the shooting the defendant had said to him that “if you go to court you’re gonna ... be doing more than limping.” The court further instructed that consciousness of guilt “is strong evidence the person is indeed guilty.” (Emphasis added.) The defendant claims that the underscored language deprived him of his federal and state constitutional rights to a fair trial in that it implied to the jury that it should believe the accusation of the victim and that it shifted the burden to the defendant to refute the accusation. As with his first two claims of instructional error,, the defendant failed to object to the instruction at trial and now seeks review under State v. Evans, supra, and State v. Golding, supra.

“It is well established that the test to be applied on appellate review to a claim of instructional error is whether the charge as a whole presented the case to the jury so that no injustice has been done. State v. Lytell, 206 Conn. 657, 664, 539 A.2d 133 (1988); State v. Moss, 189 Conn. 364, 370, 456 A.2d 274 (1983); State v. Derrico, 181 Conn. 151, 170, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).” State v. Lamme, 19 Conn. App. 594, 607, 563 A.2d 1372 (1989). An error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict. State v. Anderson, 212 Conn. 31, 38, 561 A.2d 897 (1989); State v. Woods, 23 Conn. App. 615, 623, 583 A.2d 639 (1990).

After reviewing the jury instruction in its entirety, we are satisfied that it was not reasonably possible that the use of the phrase “is strong evidence the person is indeed guilty” confused or misled the jury with regard to the state’s heavy burden of proof so that justice was not served. State v. Robinson, 204 Conn. 207, 211, 527 A.2d 694 (1987); State v. Mullings, 202 Conn. 1, 14, 519 A.2d 58 (1987); State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982); State v. Haynes, 25 Conn. App. 472, 595 A.2d 902 (1991); State v. Lamme, supra; State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986), cert. denied, 202 Conn. 805, 520 A.2d 1286 (1987). The defendant has failed to meet the third prong of State v. Golding, supra, because he cannot demonstrate that a constitutional violation “clearly exists and clearly deprived the defendant of a fair trial.” Id., 239. This claim necessarily then must fail.

II

The defendant’s next claim is that the trial court should not have refused to grant his motion for a mistrial. The gravamen of this claim is that, because the jury foreperson had prior obligations outside of the state, the jury verdict was rushed, and the defendant was denied a fair trial. We disagree.

The following additional facts are necessary. On Thursday, May 2, 1991, the second day of testimony, one of the jurors informed the court, by note, that he was in the process of two .major acquisitions outside of the state that had to be completed by Friday, May 10, 1991. The court called the juror into court and indicated that it believed the trial could conclude by Tuesday, May 7,1991. The court inquired if that would present a problem and the juror responded that if the trial went beyond Tuesday it would be a hardship. The trial court agreed to “monitor” the situation and review it before excusing the alternate jurors, if it appeared that the evidence would go beyond Tuesday.

The presentation of evidence was concluded on Monday, May 6,1991. On May 7, 1991, counsel presented their closing arguments and the trial court instructed the jury. Prior to the commencement of the deliberation, the court inquired if the jurors were restricted by any personal schedules. There were no responses to the court’s inquiry. At approximately 5 p.m., the jury requested a breakdown of the two counts of the information. The trial court had that portion of the charge read to the jury. The trial court indicated that it was its intention to dismiss the jurors after the reading and to have deliberation recommence in the morning. The jury, however, requested an additional ten minutes to continue its deliberations.

After ten minutes, the jury returned to the courtroom with a verdict. The first count presented to the jury for their verdict was the first count of the information, assault in the first degree in violation of General Statutes § 53a-59 (a) (1). In response to the court’s request for a verdict on the first count of the information, the jury foreperson replied that the jury found the defendant not guilty of that offense. The next offense presented to the jury for its verdict was the first lesser included offense of the first count, attempted assault in the first degree in violation of §§ 53a-59 (a) (1) and 53a-49 (a) (2). The jury foreperson indicated that the jury found the defendant guilty of the first lesser included offense, which was the second offense presented to the jury for its consideration. The court then began to poll the jurors individually as to the guilty verdict.

At this point, the foreperson asked if the court had read the charges of the first and second count separately, to which the court responded that it read the first count and then the first lesser included offense of that count. The foreperson then requested that the jury be granted permission to amend its verdict. The court granted the request and ordered the jury to return to the deliberation room. Prior to leaving the courtroom, the foreperson passed a sheet of paper to the clerk on which was written “2nd Count Guilty of Reckless Abandon.” The jury returned to the deliberation room and defense counsel sought a mistrial on the ground that the jury was “rushing to judgment.” The motion was denied.

The jury’s actions in the courtroom were due to the order in which the trial court presented the counts of the information and the lesser included offenses to the jury for its verdict. It is apparent that the jury was under the impression that the trial court was going to request verdicts on the two charged offenses first and then, if necessary, proceed to the lesser included offenses. By responding that the defendant was guilty of the second count presented for its verdict, the jury believed that it was convicting the defendant of the second count of the information, not of the first lesser included offense of the first count of the information.

Upon the jury’s return to the courtroom, the court indicated to the jury the order in which it was going to present the counts of the information and the lesser included offenses for it to render its verdict. The jury found the defendant not guilty of the first count, assault in the first degree, and not guilty of the lesser included offenses of attempted assault in the first degree, assault in the second degree, and attempted assault in the second degree, but guilty of the second count of the information, assault in the first degree in violation of General Statutes § 53a-59 (a) (3). The jurors were polled individually as to the verdict on the second count of the information and the verdict was accepted by the court.

In our review of the denial of a motion for mistrial, we have recognized the broad discretion that is vested in the trial court to decide whether an occurrence at trial has so prejudiced a party that he or she can no longer receive a fair trial. State v. Famiglietti, 219 Conn. 605, 616, 595 A.2d 306 (1991); Speed v. DeLibero, 215 Conn. 308, 315, 575 A.2d 1021 (1990); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982). Given the fact that the trial judge is not simply a referee presiding over a forensic contest, but is a minister of justice, he is, for that purpose, vested with the authority to exercise reasonable discretion in the conduct of a trial. State v. Lucci, 25 Conn. App. 334, 341-42, 595 A.2d 361, cert. denied, 220 Conn. 913, 597 A.2d 336 (1991). The decision of the trial court is therefore reversible on appeal only if there has been an abuse of discretion. State v. Marra, 215 Conn. 716, 732, 579 A.2d 9 (1990); State v. Cruz, 212 Conn. 351, 364, 562 A.2d 1071 (1989); State v. Rodriguez, 210 Conn. 315, 326, 554 A.2d 1080 (1989); State v. Fleming, 198 Conn. 255, 264, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Harvey, 27 Conn. App. 171, 177-78, 605 A.2d 563 (1992).

In our view, the trial court did not abuse its discretion by denying the defendant’s motion for a mistrial. Other than the initial remarks by the jury foreperson, the record is devoid of any evidence that the verdict was rushed. It is apparent from our review of the record that jury deliberation was undertaken with the appropriate level of seriousness and responsibility. There has been no showing that the jurors failed to review the case thoroughly during the course of their deliberations. See State v. Castonguay, 194 Conn. 416, 436, 481 A.2d 56 (1984). Moreover, the jury’s request to amend its initial verdict of guilty of the first lesser included offense of the first count of the information, indicates its awareness of the differences between the specific counts of the information and the lesser included offenses and its willingness to take the time to rectify any errors. The defendant directs us to no evidence indicating that he was so prejudiced that he can no longer receive a fair trial. We, therefore, conclude that the trial court correctly denied the defendant’s motion for mistrial.

III

The defendant’s final claim is that the evidence presented at trial was insufficient to sustain his conviction. We disagree.

We employ “a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. ... We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. ... We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Johnson, 26 Conn. App. 433, 435, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992).

In order to convict the defendant of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), the state was required to prove beyond a reasonable doubt that “under circumstances evincing an extreme indifference to human life [the defendant] recklessly engage[d] in conduct which createfd] a risk of death to another person, and thereby cause[d] serious physical injury to another person.” State v. Jupin, 26 Conn. App. 331, 340, 602 A.2d 12, cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). The defendant does not dispute the fact that the victim suffered a serious physical injury. Rather, he disavows responsibility for the injury sustained.

The jury’s verdict is amply supported by the record. The victim testified that although he did not see anyone firing a gun from building thirty, he heard shots being fired from that area, that he had seen the defendant standing in the hallway of building thirty only a short while earlier and that in November, 1990, after the defendant had been formally charged with having assaulted the victim, the defendant threatened the victim, indicating that if he testified in court he would be doing a lot more than limping. The jury had before it the sworn, written statement of Marcellina Cosby, introduced for substantive purposes under State v. Whelan, supra, in which she stated that, from an approximate distance of twenty-five feet, she saw the defendant fire a long black gun, which he had hidden under a three-quarter length coat, across the street at two Hispanic males and that his gunfire hit her son. She further indicated that the defendant was the only person shooting from the direction from which the bullet came. The jury also had before it the sworn, written statement of' Raymond Lopez, admitted for substantive purposes under State v. Whelan, supra, in which he stated that he saw the defendant, standing alone, shoot the victim. Moreover, while giving their statements at the police station, Cosby and Lopez were asked to identify the victim’s assailant. They both selected the defendant’s photograph from an array of seven black and white photographs of young black males.

On the basis of these facts, we conclude that there was sufficient evidence from which the jury reasonably could conclude that the victim was shot by the defendant while the defendant was recklessly firing a gun toward individuals across the street.

The judgment is affirmed.

In this opinion the other judges concurred.

       Moreover, the instruction given by the trial court clearly complies with State v. Whelan, 200 Conn. 743, 750, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). In Whelan, our Supreme Court stated: “ ‘If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court.’ . . . The jury can, therefore, determine whether to believe the present testimony, the prior statement, or neither.” (Citations omitted.) Id.

       General Statutes § 54-84 (b) provides in pertinent part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. . . .”

       This juror was selected to act as the jury foreperson.

       General Statutes § 53a-59 (a) (1).

       General Statutes §§ 53a-59 (a) (1) and 53a-49 (a) (2).

       General Statutes § 53a-60 (a) (2).

       General Statutes §§ 53a-60 (a) (2) and 53a-49 (a) (2).

       Many cases have upheld verdicts even though the jury deliberated for a relatively short time before reaching its verdict. State v. Hernandez, 28 Conn. App. 126, 612 A.2d 88 (1992) (five to seven minutes — sale of narcotics and conspiracy to distribute narcotics); United States v. Brotherton, 427 F.2d 1286 (8th Cir. 1970) (five to seven minutes — transporting a stolen vehicle in interstate commerce); State v. Burrell, 106 Ariz. 100, 471 P.2d 712 (1970) (forty minutes — convicted of three counts of robbery and escape and acquitted of three counts of kidnapping guards); State v. Ware, 338 N.W.2d 707 (Iowa 1983) (one and one-half hours — first degree murder and first degree robbery); State v. Chadwick, 328 N.W.2d 913 (Iowa 1983) (one hour and twenty-nine minutes—first degree murder); State v. Inman, 350 A.2d 582 (Me. 1976) (forty minutes—felonious homicide); State v. Gibbs, 600 S.W.2d 594 (Mo. App. 1980) (seven minutes—carrying a concealed weapon and possession of marihuana); State v. Spangler, 314 N.C. 374, 333 S.E.2d 722 (1985) (fifteen minutes—first degree murder); State v. Caldwell, 656 S.W.2d 894 (Ten. Cr. App. 1983) (twenty-six minutes—first degree murder); Anglin v. State, 553 S.W.2d 616 (Tenn. Cr. App. 1977) (ten minutes—aiding and abetting assault with intent to commit robbery); Wheeler v. State, 539 S.W.2d 812 (Tenn. Cr. App. 1976) (eleven minutes—armed robbery); State v. Bell, 582 S.W.2d 800 (Tex. Cr. App. 1979) (one hour—capital murder); State v. Killary, 133 Vt. 604, 349 A.2d 216 (1975) (forty-seven minutes—first degree murder); see also Annot. Criminal Case—Reaching Verdict—Haste, 91 A.L.R.2d 1238.


author: Heiman, J.

text:
    State of Connecticut v. Mary Ephraim State of Connecticut v. Gardenia Ephraim
    (9524)
    (9525)
    Lavery, Landau and Heiman, Js.
    Argued April 29
    decision released July 21, 1992

      Brian M. O’Connell, special public defender, for the appellants (defendants).

      James A. Killen, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and John Massameno, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendants appeal from judgments of conviction, rendered after a jury trial. The defendant Gardenia Ephraim was convicted of six counts of larceny in the first degree in violation of General Statutes §§ 53a-8, 53a-119 (2) and 53a-122 (a), three counts of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 (a), 53a-119 (2) and 53a-122 (a), one count of larceny in the second degree in violation of General Statutes §§ 53a-8, 53a-119 (2) and 53a-123 (a) (2), one count of conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 (a), 53a-119 (a) (2) and 53a-123 (a) (2), one count of attempt to commit larceny in the third degree in violation of General Statutes §§ 53a-8, 53a-49 (a) (2), 53a-119 (2), 53a-124 (a) (2), and one count of racketeering in violation of General Statutes § 53-395 (b). Her codefendant, Mary Ephraim, was convicted of three counts of larceny in the first degree in violation of General Statutes §§ 53a-8, 53a-119 (2), and 53a-122 (a) (2), three counts of conspiracy to commit larceny in the first degree in violation of General Statutes §§ 53a-48 (a), 53a-119 (2) and 53a-122 (a), one count of larceny in the second degree in violation of General Statutes §§ 53a-8, 53a-119 (2) and 53a-123 (a) (2), one count of conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a-48 (a), 53a-119 (2) and 53a-123 (a) (2), and one count of racketeering in violation of General Statutes § 53-395 (b). The charges against the defendants arose out of their alleged fraudulent acquisition of money and goods from six different victims in exchange for what the defendants termed “the work,” which encompassed fortune telling, spiritual advice and combatting evil spirits.

The defendants claim that (1) the prosecution of them was “inherently unfair” and was “barred” by the free exercise clauses of the first amendment to the United States constitution and article seven of the Connecticut constitution and (2) the trial court improperly admitted certain statements and lifestyle evidence under the coeonspirator exception to the hearsay rule. We affirm the trial court’s judgment.

I

The defendants first claim that the prosecution of them was “inherently unfair” and was “barred” by the free exercise of religion clauses of the first amendment to the United States constitution and article seven of the Connecticut constitution. They cannot prevail on this claim.

In an attempt to understand the nature of the defendants’ first challenge to their convictions, it is useful to note what the defendants do not claim. They do not claim that the statutes under which they were prosecuted are facially unconstitutional, that the trial court’s jury instructions on the free exercise of religion were erroneous, that the trial court’s denial of their postverdict motions for judgment of acquittal was improper, that the evidence against them was insufficient to support their convictions or that the trial court should have declared a mistrial. In addition, the defendants conceded at oral argument “this case . . . does not involve any allegation of prosecutorial misconduct . . . .” Further, they do not claim, as required by General Statutes § 52-263 and Practice Book § 4000, to be “aggrieved by [a] decision of the court or judge upon any question or questions of law arising in the trial . . . .”

Instead, the defendants make the ethereal, amorphous and generalized claim that the “prosecution is barred” by the free exercise clauses of the federal and state constitutions. They further assert that “the prosecution of these activities was inherently unfair and is explicitly prohibited by the aforementioned guarantees.” Thus, their claim appears to be that the free exercise clause necessarily caused the prosecution to be barred, or alternatively, inherently unfair.

The defendants further concede that their claim was not preserved for appellate review, and request review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). In State v. Golding, supra, our Supreme Court reformulated the standard of appellate review of unpreserved claims: “[W]e hold that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id., 239-40. We conclude that the defendants cannot satisfy either the first or third prongs of Golding, and therefore cannot prevail on their claim.

The defendants cannot satisfy the first Golding requirement — that the record is adequate to review the alleged claim of error. As demonstrated above, the defendant has not claimed that the trial court committed any particular error. The record necessarily is inadequate to review this nonclaim.

The defendants also cannot satisfy the third Golding requirement — that the alleged constitutional violation clearly exists and clearly deprived them of a fair trial.

“[The United States Supreme Court] has long recognized a distinction between the freedom of individual belief, which is absolute, and the freedom of individual conduct, which is not absolute.” Bowen v. Roy, 476 U.S. 693, 699, 106 S. Ct. 2147, 90 L. Ed. 2d 735 (1986); see also Cantwell v. Connecticut, 310 U.S. 296, 303-304, 60 S. Ct. 900, 84 L. Ed. 1213 (1940). An individual’s religious beliefs do not necessarily excuse noncompliance with otherwise valid laws prohibiting conduct. Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 878-79, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990). For instance, in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1879), the United States Supreme Court upheld a federal statute criminalizing bigamy despite the petitioner’s sincere belief that it was his religious duty to practice bigamy, stating: “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Id., 167. The Supreme Court of the United States has made clear that their decisions do not “even remotely . . . imply that, under the cloak of religion, persons may, with impunity, commit frauds upon the public. Certainly penal laws are available to punish such conduct.” Cantwell v. Connecticut, supra, 306.

It is further well settled that the free exercise of religion clause protects only those activities that are undertaken because of a religious belief that the defendant sincerely holds. See Murphy v. Arkansas, 852 F.2d 1039, 1041 (8th Cir. 1988); Martinelli v. Dugger, 817 F.2d 1499, 1503 (11th Cir.), cert. denied, 484 U.S. 1012, 108 S. Ct. 714, 98 L. Ed. 2d 664 (1987); United States v. Daly, 756 F.2d 1076, 1081 (5th Cir.), cert. denied, 474 U.S. 1022,106 S. Ct. 574, 88 L. Ed. 2d 558 (1985); Patrick v. LeFevre, 745 F.2d 153, 159-60 (2d Cir. 1984); Forest Hills Early Learning Center, Inc. v. Lukhard, 728 F.2d 230 (4th Cir. 1984), cert. denied, 488 U.S. 1029, 109 S. Ct. 837, 102 L. Ed. 2d 969 (1989); Africa v. Commonwealth of Pennsylvania, 662 F.2d 1025, 1030 (3d Cir.), cert. denied, 456 U.S. 908, 102 S. Ct. 1756, 72 L. Ed. 2d 165 (1981); Callahan v. Woods, 658 F.2d 679, 683 (9th Cir. 1981); Ron v. Lennane, 445 F. Sup. 98, 100 (D. Conn. 1977); Maguire v. Wilkinson, 405 F. Sup. 637, 640 (D. Conn. 1975). Thus, if the jury could reasonably have concluded that the defendants’ purported religious beliefs were not sincere, but were a pretext for committing deception or fraud, the free exercise clause did not prohibit their conviction. Patrick v. LeFevre, supra, 157.

It will suffice to say, without detailing the voluminous evidence introduced at trial, that our review of the record discloses ample evidence on which the jury reasonably could have concluded that the defendants did not sincerely believe the representations that they made to the victims regarding fortune telling and other metaphysical matters. For instance, Mary Ephraim admitted that the purpose of fortune telling was to secure as much money as possible from the victims without hurting them, that certain rituals that the defendants performed in order to persuade the victims to give them money were mere trickery and that the defendants intentionally perpetrated rather elaborate hoaxes in order to convince the victims that the defendants possessed supernatural powers. These admissions, coupled with the testimony of the victims and other witnesses, provided an adequate factual predicate for the jury to find that the defendants did not sincerely believe the representations that they made to the victims in this matter. As a result, the defendants have utterly-failed to demonstrate that a constitutional violation clearly exists.

Because the defendants have failed to satisfy the first and third prongs of State v. Golding, supra, they cannot prevail on this claim.

II

The defendants next claim that the trial court improperly admitted certain statements and lifestyle evidence of alleged coconspirators under the coconspirator exception to the hearsay rule without making an adequate preliminary finding, as required by State v. Vessichio, 197 Conn. 644, 500 A.2d 1311, cert. denied, 475 U.S. 1122, 106 S. Ct. 1642, 90 L. Ed. 2d 187 (1986).

“Because the claim does not involve the violation of a constitutional right, the burden lies with the defendant to demonstrate the harmfulness of the error.” State v. Denby, 198 Conn. 23, 32, 501 A.2d 1206 (1985), cert. denied, 475 U.S. 1097, 106 S. Ct. 1497, 89 L. Ed. 2d 898 (1986); see also State v. Sullivan, 11 Conn. App. 80, 84-85, 525 A.2d 1353 (1987). The defendants, however, have neither made nor analyzed any claim of prejudice. Thus, we need not decide whether the trial court improperly admitted the challenged evidence. Having failed to demonstrate that they were prejudiced by the admission of this evidence, the defendants cannot prevail on their claim.

The judgments are affirmed.

In this opinion the other judges concurred.

       The first amendment to the United States constitution provides in pertinent part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .

       Article seven of the Connecticut constitution provides in pertinent part: “It being the right of all men to worship the Supreme Being, the Great Creator and Preserver of the Universe, and to render that worship in a mode consistent with the dictates of their consciences, no person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association. No preference shall be given by law to any religious society or denomination in the state. . . .”

       The free exercise clause of the first amendment has been made applicable to the states by incorporation into the fourteenth amendment. See Employment Division, Department of Human Resources v. Smith, 494 U.S. 872, 876-77, 110 S. Ct. 1595, 108 L. Ed. 2d 876 (1990).

       Although the defendants assert that their rights under both the state and federal constitutions were violated, they do not provide a separate analysis of their state constitutional claim. Both we and the Supreme Court have declined to review a defendant’s state constitutional claim, deeming it to have been abandoned, when the defendant has not briefed and analyzed that claim separately. See, e.g., State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Hoeplinger, 27 Conn. App. 643, 652 n.2, 609 A.2d 1015 (1992); State v. Redente, 19 Conn. App. 521, 531 n.5, 563 A.2d 1365 (1989). That declination, however, does not mean that we are not able to review such a claim if we choose to do so. State v. Hoeplinger, supra; State v. Geisler, 25 Conn. App. 282, 283-84 n.2, 594 A.2d 985 (1991), aff’d, 222 Conn. 672, 610 A.2d 1225 (1992).


text:
    John Michel, Jr., et al. v. Planning and Zoning Commission of the Town of Monroe et al.
    (10766)
    Dupont, C. J., Foti and Heiman, Js.

      Argued May 4
    decision released July 21, 1992

      George J. Markley, for the appellants (plaintiffs).

      Alice A. Carey, with whom was Edward P. McCreery III, for the appellee (named defendant).
   Heiman, J.

The plaintiffs in this zoning dispute appeal from the trial court’s judgment dismissing their appeal from the Monroe planning and zoning commission’s decision granting the defendant McDonalds Corporation’s application for a change of zone and for a special exception permit. They claim that the trial court improperly found that (1) the appeal was moot, (2) the zone change did not constitute spot zoning, (3) the commission did not impose an illegal condition on its decision granting the application, (4) the application was not fatally defective even though the named applicant, McDonalds Corporation, was not an owner of the property at the time the application was filed, (5) the commission’s failure to hold separate votes on the requests for a zone change and for a special exception permit was not improper, (6) the building conditions and parking requirements imposed by the commission were not improper and (7) the commission’s decision to grant the application was not improper, even though the commission held a public hearing on the application before it received the decision and report of the Monroe inland wetlands commission on a related application. We affirm the trial court’s judgment.

The following facts are necessary to resolve this appeal. On May 3,1990, McDonalds Corporation filed an application with the Monroe planning and zoning commission requesting a zone change for a four acre parcel and a special exception permit authorizing the construction of a McDonalds restaurant with a drive-through service window. On the date that the application was filed, the subject parcel, located at 390 and 400 Monroe Turnpike in Monroe, straddled two zoning districts: Design Business 1 (DB1) and Residential and Farming C (RC). The Monroe zoning regulations (regulations) permit certain restaurants that do not have drive-through windows to be built in DB1 districts. No restaurants are permitted in RC districts. Restaurants containing drive-through service windows are, however, permitted in Design Business 2 (DB2) districts. The regulations applicable to DB districts provide further: “Any new building to be constructed . . . shall be required to obtain a special exception permit for business use prior to its use.” Thus, in order to build a restaurant with a drive-through window, McDonalds sought a zone change redistricting the entire parcel as DB2 together with a request for a special exception permit.

The commission held a public hearing on the application on May 24, 1990. On June 29, 1990, the Monroe inland wetlands commission granted conditional wetlands approval for the parcel. After a single vote taken on July 5, 1990, the planning and zoning commission granted the application. The plaintiff abutting landowners appealed the commission’s decision to the Superior Court; see General Statutes § 8-9; and the trial court dismissed the appeal, finding that the appeal was moot and, further, that each of the plaintiffs’ claims was meritless. The plaintiffs petitioned this court for certification, which we granted on October 16, 1991. This appeal followed.

I

Plaintiffs claim that the trial court incorrectly determined that their appeal was moot. At oral argument before this court, the defendants agreed. Although the parties agree that the trial court improvidently dismissed the appeal as moot, we nonetheless must address the mootness issue because mootness implicates our jurisdiction. See Furstein v. Hill, 218 Conn. 610, 627, 590 A.2d 939 (1991). We agree with the parties. The appeal was not, and is not, moot.

The trial court found that the commission’s adoption of a new zoning map in June, 1991, rendered moot the plaintiffs’ challenge to the commission’s July 5, 1990 vote granting McDonalds’ requests for a change of zone and a special exception permit. Our Supreme Court’s recent decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), which was published after the trial court rendered its judgment, controls our resolution of this issue. In Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, the court recognized that General Statutes § 8-2h (a), which became effective on October 1,1989, legislatively overruled McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985), and Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339, cert. denied, 194 Conn. 806, 482 A.2d 711 (1984), cert. denied, 471 U.S. 1066, 105 S. Ct. 2141, 85 L. Ed. 2d 498 (1985), which had determined that certain zoning appeals became moot by virtue of subsequent regulatory amendments. Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, 540-41. The current rule in this state is that the validity of a planning and zoning commission’s action is to be determined by reference to the zoning laws and regulations in effect at the time that the challenged action was taken. Id.; see General Statutes § 8-2h (a). Thus, a challenge to commission action no longer is rendered moot by a subsequent change in the applicable zoning laws or regulations. Id. The trial court incorrectly concluded otherwise.

II

The plaintiffs next argue that the commission engaged in illegal spot zoning when it granted the change of zone. We disagree.

Our courts consistently have invalidated zoning decisions that have constituted spot zoning. “ ‘[S]pot zoning is the “reclassification of a small area of land in such a manner as to disturb the tenor of the surrounding neighborhood.” ’ Morningside Assn. v. Planning & Zoning Board, [162 Conn. 154, 161, 292 A.2d 893 (1972)]. Two elements must be satisfied before spot zoning can be said to exist. First, the zone change must concern a small area of land. Second, the change must be out of harmony with the comprehensive plan for zoning adopted to serve the needs of the community as a whole. Id. The comprehensive plan is to be found in the scheme of the zoning regulations themselves. First Hartford Realty Corporation v. Plan & Zoning Commission, 165 Conn. 533, 542, 338 A.2d 490 (1973).” Blaker v. Planning & Zoning Commission, 212 Conn. 471, 483, 562 A.2d 1093 (1989).

Our review of the minutes of the commission’s July 5, 1990 meeting discloses that the vote to approve McDonalds’ application for a zone change and a special exception permit was based in part on the following finding: “[T]he rezoning does not constitute a ‘spot zone’ as the Plan of Development specifies that the subject area be a business zone without limitation or specification as to the specific zone designation. The subject site is principally zoned business as well as adjoining sites for substantial distances and areas to the north, south and west. The rezoning represents no dramatic change in the already intended use of the site.” The commission further announced: “[A]ll aspects and features of the proposal . . . are necessary for the welfare and convenience of the townspeople and will provide for the growth of appropriate business and retail establishments in town. The use will fill a significant need in the community and will be a desirable addition to the town of Monroe both in terms of goods and services to the community and as a reasonable addition to the tax structure.”

The plaintiffs rely heavily on the fact that, under the Monroe zoning regulations, a drive-through window is permitted in a DB2 district but is not permitted in a DB1 district. This, they contend, leads ineluctably to the conclusion that the zone change from DB1 to DB2 is repugnant to the town’s comprehensive zoning plan. We, however, afford the commission’s determination of whether a change comports with the town’s comprehensive zoning plan substantial deference. Dooley v. Town Planning & Zoning Commission, 154 Conn. 470, 478, 226 A.2d 509 (1967). Here, the commission rezoned the subject parcel from one variety of design business district to another. The practical effect of the change in zone was simply to permit a McDonalds restaurant with a drive-through window in lieu of a McDonalds restaurant without a drive-through window. The commission did not engage in spot zoning when it granted McDonalds’ application for a change of zone because it reasonably concluded that this incremental change in the permitted use of the property was not repugnant to Monroe’s comprehensive zoning plan.

This claim is without merit.

Ill

The plaintiffs next claim that the commission improperly required that a sidewalk be installed along one border of the subject parcel as a condition to the change of zone. We disagree.

The minutes of the commission’s July 5,1990 meeting disclose that the commission approved McDonalds’ application subject to a number of conditions, including the construction of a sidewalk along the roadway adjacent to the subject parcel. The plaintiffs claim that this condition violated General Statutes § 8-2, which requires that zoning regulations be uniform throughout all districts in the same class. They contend that because the Monroe zoning regulations do not provide for the installation of sidewalks in DB2 zones generally, the condition was unique to the DB2 zone at issue in this case. As such, the plaintiffs posit, the condition violates the uniformity requirement of § 8-2.

Our review of the record indicates that the installation of the sidewalk was a condition that the commission imposed on its granting of the special exception permit, not its granting of the zone change. McDonalds submitted a single uniform land use application to the commission seeking a “Design District Zone Change/ Special Exception Permit.” Section 8-2 explicitly provides that zoning commissions may, despite the uniformity requirement, provide that certain classes or kinds of structures may be built only after special exception permits are issued. It further provides that commissions may issue special exception permits “subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.” (Emphasis added.) Section 117-1100 (A) of the Monroe zoning regulations provides in pertinent part that “[a] DB District shall be established and/or a DB use shall be permitted only in an area where the uses meet the conditions for a special exception permit, as provided in Sections 117-1801 and 117-1802 of these regulations.” Section 117-1801 (A) of the regulations provides in pertinent part that “[t]he Town Planning & Zoning Commission may approve a special exception permit, which may be subject to appropriate conditions and safeguards specified in its action of approval, to permit the establishment of the uses specified elsewhere in these regulations as being permitted by special exception . . . .” The commission acted well within its considerable discretion in determining that the construction of a sidewalk was “appropriate”; see Monroe zoning regulations § 117-1801; and “necessary to protect the public health, safety, convenience and property values.” See General Statutes § 8-2.

The plaintiffs argue that only a single vote was taken on McDonalds’ application for a zone change/special exception permit, and, thus, the condition necessarily applied to the granting of the change of zone. It is the appellants’ burden, however, to present us with a record that is adequate to review their claim. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). Just as we will not presume that a trial court acted illegally; see Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988); Barra v. Ridgefield Card & Gift Gallery, Ltd., supra; Daly v. DelPonte, 27 Conn. App. 495, 507, 608 A.2d 93 (1992); we will not presume, when faced with this ambiguous record, that the commission improperly imposed the condition incident to its granting of the zone change. See Cahill v. Board of Education, 198 Conn. 229, 242, 502 A.2d 410 (1985); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 124, 612 A.2d 82 (1992). Because the commission could properly have imposed this condition incident to its granting of the special exception permit, and there is no indication that it instead improperly imposed the condition on its granting of the zone change, its decision must stand.

IV

The plaintiffs next claim that McDonalds Corporation was an improper applicant because it lacked a sufficient interest in the subject property. We disagree.

Section 117-900 of the Monroe zoning regulations provides in pertinent part that “[t]he owner or owners of a tract of land may petition for the establishment of a design district (D) only, coincidentally with an application for special exception permit . . . .” Section 117-900 (A) provides that “[i]n Design Districts, the existing use of land shall not be changed . . . until a site plan of development shall have been prepared by the owner of such land . . . .” McDonalds’application lists McDonalds Corporation as the applicant. The plaintiffs argue that because McDonalds Corporation was a lessee, not an owner, of the property at the time that the application was filed, the application was defective. The application also is signed, however, by George W. Ganim and Laurese Coury, owners of the subject parcel. The signatures of Ganim and Coury appear on the application immediately after the following: “The undersigned, being all of the owners of the premises referred above, hereby consent to the filing of this application together with meeting of all requirements of the applicant by the Commission for same.”

The commission enjoys reasonable discretion in construing the regulations that it is charged with enforcing. Spero v. Zoning Board of Appeals, 217 Conn. 435, 440, 586 A.2d 590 (1991); Schwartz v. Planning & Zoning Commission, 208 Conn. 146, 152, 543 A.2d 1339 (1988). The plaintiffs bear the burden of proving that the commission acted unreasonably, arbitrarily or illegally. See Spero v. Zoning Board of Appeals, supra, 441. We cannot say that the commission’s interpretation of its regulations was unreasonable, arbitrary or illegal. The regulations provide that the owner may “petition” for a change of zone and a special exception permit. Monroe zoning regulations § 117-900. Webster’s Ninth New Collegiate Dictionary defines “petition” as “to ask for; solicit.” In light of the fact that the owners signed the application, explicitly consenting to it, the commission reasonably concluded that they, as well as McDonalds, petitioned for the zone change and special exception permit. See DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 376, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

Similarly, the commission reasonably concluded that the § 117-900 (A) directive that “[i]n Design Districts, the existing use of land shall not be changed ... until a site plan of development shall have been prepared by the owner of such land” was satisfied. Section 117-900 (E) provides that “[w]here deemed appropriate in the judgment of the Commission . . . a site plan of development in substantial compliance with the requirements herein may be approved with such minor variations from the strict application of the provisions of these regulations as will provide for the most appropriate use of the land and as will protect the public health and safety and preserve property values and as will provide for the most orderly development of the land. No variations shall be permitted that violate the integrity of these regulations . . . .” The commission acted well within its discretion in concluding that there had been substantial compliance with the site plan of development, despite the fact that the application was prepared by McDonalds Corporation rather than by the owners of the property.

The plaintiffs claim further that McDonalds Corporation, a mere lessee of the parcel, lacked standing to apply for the zone change and special exception permit. The principles governing nonowner standing in zoning cases are set forth in Richards v. Planning & Zoning Commission, 170 Conn. 318, 365 A.2d 1130 (1976). The critical inquiry is whether the applicant is “a real party in interest with respect to the subject property. Whether the applicant is in control of the property, whether he is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant’s interest in the property, and the extent of the interest of other persons in the same property, are all relevant considerations in making that determination.” Id., 323-24. Our courts, in accordance with the general rule, recognize the rights of certain lessees to apply for zone changes and special permits. Id., 322.

The trial court found that McDonalds Corporation had standing because it had a substantial interest in the subject parcel. We agree. In its uniform land use application, McDonalds stated that its purpose in seeking the zone change and special exception permit was to accommodate a drive-through window at its restaurant. Further, the transcript of the proceedings in the Superior Court indicate that the trial court determined, after reviewing the lease, that McDonalds was in fact a lessee of the property. These facts are sufficient to establish that McDonalds Corporation was a real party in interest with respect to the property.

Finally, the plaintiffs challenge McDonalds Corporation’s standing to seek a zone change and special exception permit on the ground that McDonalds Corporation was a lessee of only one acre of the four acre parcel at issue. We agree that McDonalds was not a real party in interest with regard to the three acres that it did not lease. As we noted earlier, however, the owners of the parcel signed the uniform land use application, explicitly consenting to its being filed. Thus, the application to rezone the entire four acre parcel was properly before the commission, and the application was not fatally defective.

V

The plaintiffs next claim that the commission improperly held but a single vote on the requests for a change of zone and special exception permit. We disagree.

Our review of the record discloses that the commission held separate votes on McDonalds Corporation’s requests for a zone change and special exception permit. The minutes of the commission’s July 5, 1990 meeting indicate that a motion to deny the application for a change of zone failed, two votes to three. We view this vote as the functional equivalent of a vote to approve the application for a change of zone. Indeed, General Statutes § 8-3 (c) provides that where a commission is faced with a petition seeking a change of zone, “[t]he commission shall adopt or deny the changes requested in such petition.” Thus, the commission had only two choices with regard to the request for a change of zone: approve the request or deny it. The commission’s vote failing to deny the request constituted an approval thereof.

After the vote rejecting the motion to deny the change of zone, the commission voted to approve “the application for zone change and special exception permit . . . .” Because the change of zone already had been approved, however, the practical effect of this vote was to grant only the application for a special exception permit. Because the commission held separate votes on the application for a special exception permit and application for a change of zone, the plaintiffs cannot prevail on this claim.

VI

The plaintiffs next claim that the commission illegally imposed the following condition on its approval of the application for a special exception permit: “Construction shall commence no later than one year from the date of decision: July 5, 1991.” We disagree.

The plaintiffs argue that the condition is void because it conflicts with § 117-900 (C) of the Monroe zoning regulations, which provides that an approved site plan “shall become null and void unless construction of building is in progress and not less than fifty percent (50%) of building foundations shown on the approved site plan of development are completed within one (1) year of the date of approval of such plan, unless an extension of time is granted by the Commission.” They claim that the condition requiring that construction begin within one year is void because it is less restrictive than § 117-900 (C), which requires not only that construction begin within one year, but that 50 percent of the building’s foundation be completed within one year.

The plaintiffs correctly assert that the commission cannot attach a condition that conflicts with the applicable zoning regulations to its approval of a special exception permit. “ ‘[T]he conditions under which a special [permit] is allowed must be found in the regulations and cannot be altered; and if a condition is imposed by a commission without being warranted by the regulations, it is void.’ [Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971).]” Hochberg v. Zoning Commission, 24 Conn. App. 526, 529, 589 A.2d 889 (1991). The condition attacked by the plaintiffs does not, however, conflict with § 117-900 (C) of the Monroe zoning regulations. Section 117-900 (C) expressly provides that the commission may extend the time period within which 50 percent of the building’s foundation must be completed. The condition that construction of the building need commence only within one year merely extended the deadline for completing the foundation. As such, the condition did not conflict with the applicable zoning regulations.

YII

The plaintiffs next contend that the parking proposal approved by the commission is void because it conflicts with the applicable zoning regulations. We are not persuaded.

The proposal approved by the commission included forty-four parking spaces. The plaintiffs argue that forty-four parking spaces are inadequate in light of § 117-2402 (G) of the Monroe zoning regulations, which requires one parking space for each twenty-five square feet of patron floor area in a fast food establishment. The plaintiffs, referring to the floor plan prepared by McDonalds, estimate that the patron floor area covers 1725 square feet. Thus, they conclude, a minimum of seventy parking spaces are required by the applicable zoning regulations.

The defendants point out that § 117-2403 of the regulations provides: “Where separate parts of a building or structure are used for purposes requiring different amounts of parking space, the number of spaces shall be determined by adding the number of spaces required for the area devoted to each type of use.” They contend that the floor plan sets forth two distinct areas of the building, dining and service, which are separated by a sloped wall and knee wall. The defendants argue that § 117-2402 (F), which requires one parking space for each fifty square feet of patron floor area in a restaurant, should be applied to the area designated dining, while § 117-2402 (G), which requires one parking space for each twenty-five feet, should be applied to the area designated service. Applying the plaintiffs’ square footage calculations 1218.75 square feet of dining area and 516.38 square feet of customer service area, the defendants conclude that the regulations require twenty-four parking spaces for the dining area and twenty parking spaces for the customer service area — a total of forty-four parking spaces. The plaintiffs reply that even if the defendants’ approach is followed, forty-six parking spaces are required.

The trial court’s memorandum of decision indicates that it agreed with the defendants that the service area is separate from the dining area and, therefore, that the parking space requirements should be calculated at a rate of one space per twenty-five square feet of service area and one space per fifty square feet of dining area. Our review of the floor plan indicates that the trial court correctly determined that the commission did not act arbitrarily, improperly or in abuse of its discretion when it found that the proposed building contained a service area that was separate from the dining area.

Further, the trial court properly found that the commission did not act arbitrarily, improperly or in abuse of its discretion when it found that the Monroe zoning regulations required that the premises include forty-four parking spaces. The parties agree that the portion of the floor plan labeled dining contains 1218.75 square feet, while the portion of the floor plan labeled customer service contains 516.38 square feet. Whether these figures require forty-four parking spaces, as the defendants claim, or forty-six parking spaces, as the plaintiffs claim, depends on the methodology used to calculate the requisite number of parking spaces. The dining area requires one parking space per fifty square feet. Monroe zoning regulations § 117-2402 (F). Thus, the first 1200 square feet of dining area require twenty-four parking spaces. If, and only if, the remaining eighteen feet of dining space require an additional parking space, the dining area requires a total of twenty five parking spaces. Similarly, the service area requires one parking space per twenty-five square feet. Monroe zoning regulations § 117-2402 (G). Thus, the first 500 feet of service area requires twenty parking spaces. If, and only if, the remaining sixteen square feet of service require another parking space, the service area requires a total of twenty-one parking spaces. As a result, whether the entire building requires forty-four or forty-six parking spaces depends on whether each fraction of the applicable square footage requirement triggers an additional mandatory parking space. The commission and the trial court apparently concluded that an additional parking was required for only each full square footage increment.

Our review of the regulations indicates that these conclusions were not unreasonable. Section 117-2402 (F), which applies to the dining area, mandates “[o]ne (1) space for each fifty (50) square feet of patron floor area . . . .” Section 117-2402 (G), which applies to the service area, requires “one (1) space for each twenty-five (25) square feet of patron floor area.” Conspicuously absent from these regulations is language requiring an additional parking space for each portion of fifty or twenty-five square feet, respectively.

The trial court properly determined that the commission’s requirement that McDonalds’ premises include forty-four parking spaces was not arbitrary, capricious or an abuse of discretion. Thus, the plaintiffs cannot prevail on this claim.

VIII

The plaintiffs finally maintain that the commission’s hearing was a nullity because it was held before the Monroe inland wetlands commission had issued a wetlands permit for the project. We disagree.

The plaintiffs claim that because the inland wetlands commission did not approve the wetlands application until after the application for a zone change and special exception permit was heard by the Monroe planning and zoning commission, the application was incomplete at the time of the planning and zoning commission’s hearing. Thus, the plaintiffs contend, the planning and zoning commission’s hearing on the application was a nullity. In support of their claim, the plaintiffs rely on §§ 117-905 (A) and 117-908 of the Monroe zoning regulations. Section 117-905 (A) provides: “An application for a change of zoning classification to a design district shall be submitted in complete form . . . .” Section 117-908 provides: “[Inland wetlands] approvals and/or permits must be submitted as part of the zone change and/or special exception permit application. No application shall be deemed to be complete until the aforesaid information is submitted to the Commission by the applicant.” These regulations, they contend, prohibit the planning and zoning commission from holding a hearing on an application for a change of zone and special exception permit until it receives the necessary approvals from the inland wetlands commission.

These regulations merely state that the application for a zone change and special exception permit were not complete until the inland wetlands permit was received. The regulations did not prohibit the planning and zoning commission from holding a hearing on an incomplete application. Section 117-900 (B) of the regulations provides that “[a] public hearing shall be held in accordance with the General Statutes.” General Statutes § 8-3 (g) merely directs that the inland wetlands application be filed not later than the day the site plan application is filed with the planning and zoning commission and that the planning and zoning commission not render a decision on the site plan application until the inland wetlands commission has submitted its report and final decision. The planning and zoning commission’s decision to hold a hearing on the application for a zone change and special exception permit violated neither the Monroe zoning regulations nor our General Statutes.

The plaintiff claims further that the commission’s consideration of the report of the inland wetlands commission without a public hearing thereon was improper because it deprived them of an opportunity to be heard, and, if appropriate, to offer evidence in rebuttal. We disagree.

General Statutes § 8-3 (g) required the planning and zoning commission, in making its decision on the application, to give due consideration to the report of the inland wetlands commission. A commission may not, however, consider evidence submitted after a hearing without providing the opposition with a fair opportunity to inspect the evidence and to offer evidence in explanation or rebuttal. Blaker v. Planning & Zoning Commission, supra, 477-78; Wasicki v. Zoning Board, 163 Conn. 166, 172-73, 302 A.2d 276 (1972); Carlson v. Fisher, 18 Conn. App. 488, 503, 558 A.2d 1029 (1989). Here, the inland wetlands commission held a public hearing on the plaintiffs’ application to it. The public hearing before the inland wetlands commission was sufficient to safeguard the plaintiffs’ right to be heard regarding the matters addressed by the inland wetlands commission in its report.

The plaintiffs cannot prevail on this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are John Michel, Jr., Helen M. Michel, Sr., Helen M. Michel and Michel Realty Limited. The defendants are the Monroe planning and zoning commission, McDonalds Corporation, George W. Ganim, Laurese Coury and Josephine Ganim. The plaintiffs have filed a joint brief with this court. The defendants Monroe planning and zoning commission, George W. Ganim, Laurese Coury and Josephine Ganim also have filed a joint brief. McDonalds Corporation, although a party to this appeal, has neither filed any papers with nor participated in oral argument before this court. Thus, whenever this opinion refers to an appellate position attributed to “the defendants,” that argument should be understood as having been advanced in this court only by the Monroe planning and zoning commission, George W. Ganim, Laurese Coury and Josephine Ganim.

       Although our Supreme Court’s decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, 220 Conn. 527, 600 A.2d 757 (1991), was not announced until after the trial court decided the plaintiffs’ appeal, we are not presented with an issue regarding the retroactivity of the court’s holding in that case. As we noted above, it was not our Supreme Court’s decision in Protect Hamden/North Haven from Excessive Traffic & Pollution, Inc. v. Planning & Zoning Commission, supra, but the legislature’s action in enacting § 8-2h (a), which overruled McCallum v. Inland Wetlands Commission, 196 Conn. 218, 492 A.2d 508 (1985), and Johnson v. Zoning Board of Appeals, 2 Conn. App. 24, 475 A.2d 339 (1984). Because § 8-2h (a) became effective on October 1, 1989, before the trial court decided the plaintiffs’ appeal, § 8-2h (a) controlled the trial court’s analysis of the mootness issue.

       The defendants do not dispute that the zone change involved a small area of land.

       We note that the plaintiffs correctly concede that the commission properly held but one hearing on the applications. See Norris v. Planning & Zoning Commission, 156 Conn. 592, 595-96, 244 A.2d 378 (1968).