author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. DAVID LANIER
    (12776)
    O’Connell, Spear and Hennessy, Js.
    Argued May 24
    decision released September 26, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Michele C. Lukban, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Kevin Murphy, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant appeals from the judgment of conviction, rendered after a trial by jury, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant claims that the trial court improperly (1) denied the motion for mistrial which the defendant based on an allegedly improper prosecutorial comment made during closing argument, and (2) instructed the jury on the elements of robbery in the first degree. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On November 5, 1992, at approximately 6:45 p.m., the victim, David Carter, used an automatic teller machine in the Civic Center Mall in Hartford. Carter withdrew two $20 bills from the machine and then entered a nearby public restroom. While Carter was in the restroom, the defendant came up behind him, stuck an object that felt like a gun against his back and said: “I have a gun, give me the money.” Carter responded that he had no money. The defendant then turned Carter around, and demanded his watch and wallet. After a scuffle, which resulted in Carter’s being pushed into a stall by the defendant, Carter handed over the requested items. The defendant took the $40 and some credit cards out of the wallet, and discarded the wallet and the remaining cards. Carter was able to observe the defendant throughout the encounter, and did not see a gun. During the robbery, another man entered the restroom, observed what was happening and hurriedly left.

The defendant closed the stall door, told Carter not to leave, and ran from the restroom. Carter emerged from the stall, picked up his wallet and the remaining credit cards and ran out of the restroom. Carter observed the defendant at the end of a long hallway leading back into the mall area and began to chase him. As Carter chased the defendant through the mall, yelling for help, two men tackled the defendant as he ran toward an exit. The defendant was then turned over to security guards who held him until the police arrived. No gun, watch or credit cards were found on the defendant, but $44, including two $20 bills, were found in his pocket.

At trial, the defendant testified that he was at the Civic Center with his mother on November 5,1992, and that she gave him $20. The defendant claimed that he and his mother went to the restroom area, and that when he entered the men’s room he heard scuffling from inside one of the stalls and someone saying, “Give me your money.” The defendant stated that, not wanting to become involved, he rejoined his mother and began walking back toward the mall area. The defendant testified that a man ran past them and, a few moments later, Carter came running after the defendant yelling that he had robbed him. The defendant ran from Carter and was subsequently tackled and arrested.

I

The defendant first claims that the trial court improperly denied his motion for a mistrial. That motion was based on an allegedly improper prosecutorial comment made during closing argument. The defendant contends that the prosecutor’s repeated comments that there was no dispute that a first degree robbery had occurred violated due process by suggesting to the jury that the state did not have to prove every element of the crime. We disagree.

The following additional facts are necessary for the disposition of this claim. In his closing argument, the prosecutor twice stated that there was no dispute that a robbery in the first degree had been committed. When the state made the second of these references, the defendant objected. In argument over the objection, which took place in front of the jury, the state explained that in conversations that took place off the record the defense had indicated that it was not disputing that a first degree robbery had occurred and that it was defending against the charges on the theory that the defendant was not the guilty party. The trial court overruled the defendant’s objection. After the defendant’s closing argument, he moved for a mistrial on the basis of comments made by the prosecutor during closing argument, including those made in response to the objection. The challenged comments were heard by the jury. The trial court found that the prosecutor’s statements were harmless and denied the motion for a mistrial.

The law is clear that prosecutorial misconduct may, in light of all the facts and circumstances of a particular trial, have “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” (Internal quotation marks omitted.) State v. Williams, 204 Conn. 523, 539, 529 A.2d 623 (1987), quoting Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 90 L. Ed. 2d 144 (1986). In cases where it is argued that prosecutorial misconduct requires a new trial, “[w]e do not focus alone, however, on the conduct of the prosecutor. The fairness of the trial and not the culpability of the prosecutor is the standard for analyzing the constitutional due process claims of criminal defendants alleging prosecutorial misconduct. State v. Palmer, 196 Conn. 157, 163, 491 A.2d 1075 (1985), quoting State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104 S. Ct. 280, 78 L. Ed. 2d 259 (1983) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Williams, supra, 539-40. When a defendant argues that an improper prosecutorial comment made during closing argument deprived him of a fair trial, our inquiry “is not . . . whether the remarks in question were proper or improper, but . . . whether the action of the trial corurt in refusing to grant a new trial on account of them, in the exercise of its discretion, so far exceeded or abused the discretion committed to it in a matter of this kind as to warrant us in granting a new trial.” (Internal quotation marks omitted.) State v. Fullwood, 194 Conn. 573, 584, 484 A.2d 435 (1984); see State v. Hawthorne, 176 Conn. 367, 373-74, 407 A.2d 1001 (1978).

The record in this case does not disclose that an improper comment deprived the defendant of a fair trial. The prosecutor’s explanation for why he told the jury that it was “undisputed” that a first degree robbery had occurred, reveals that there was no deliberate attempt to misdirect the jury. Furthermore, although it was not proper for the prosecution to refer to the contents of off the record conversations with defense counsel that took place “outside the presence of the jury,” it was not so flagrantly improper that its effects were irremediable. The trial court, in its instructions to the jury, made it clear that the state had the responsibility of proving every element necessary to constitute the crime charged beyond a reasonable doubt based on facts established by the evidence. The court also directed the jury that “certain things are not evidence and you may not consider them in deciding what the facts are. These include the arguments and statements by the lawyers. The lawyers are not witnesses, what they have said in their closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence.” These instructions were sufficient to preclude any possible taint injected in the proceedings by the improper prosecutorial comment.

We agree with the defendant that each of the challenged statements by the prosecution was inappropriate and potentially damaging. After reviewing the record, however, we find that the prosecutorial overreaching in this case is not so egregious as to offend due process. Thus, we do not find that the trial court, in refusing to grant a mistrial, so far exceeded or abused its discretion as to require us to grant a new trial. State v. Fullwood, supra, 194 Conn. 584.

II

The defendant also claims that the trial court improperly instructed the jury on the definition of robbery in the first degree. The trial court instructed the jury, in part, that “[i]t is sufficient to charge the defendant with the crime if the victim is made to believe that the object is such a weapon.” The defendant contends that this portion of the charge misled the jury by allowing it to find the defendant guilty of robbery in the first degree solely on the basis of the victim’s subjective belief that an object used in the robbery was a firearm. We disagree.

As a threshold matter, we note that “[b]ecause the defendant first raises this claim on appeal, this claim would ordinarily not be reviewable .... The defendant’s contention, however, that the court’s instructions failed to inform the jury adequately of all the essential elements of the crimes charged raises the possibility of a due process violation affecting the fairness of the trial. We have held that such unpreserved constitutional claims are reviewable on appeal, but we have limited the scope of such review because ‘[d]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.’ State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982). Our review of such claims is limited to determining whether, ‘considering the substance of the charge rather than the form of what was said, it is reasonably possible that the jury was misled.’ State v. Zayas, 195 Conn. 611, 617, 490 A.2d 68 (1985) (Citations omitted.) State v. McMurray, 217 Conn. 243, 253-54, 585 A.2d 677 (1991).

Placing the challenged instruction in context, the trial court instructed the jury in relevant part: “The defendant is guilty of robbery in the first degree if he threatens the use of what he represents by his words or conduct to be a pistol, revolver, riñe, shotgun, machine gun or other firearm. It is not required that such weapon be operable or that the defendant actually have a firearm. He need only represent by his words or conduct that he is so armed to be guilty of the crime of robbery in the first degree. It is sufficient to charge the defendant with the crime if the victim is made to believe that the object is such a weapon. If you find beyond a reasonable doubt that a robbery was committed by the defendant and in the course of its commission he threatened the use of what he represented by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, you should return a verdict of guilty of robbery in the first degree. If, however, you do not find all the elements are proven beyond a reasonable doubt, your verdict on this count must be not guilty or would be not guilty.” Viewed as a whole, it is evident that this portion of the charge did not mislead the jury as to the essential elements of the crime charged. The one statement challenged by the defendant, when viewed in the context of the charge as a whole, does not demonstrate a reasonable possibility that the jury was misled. The defendant’s claim of improper jury instructions must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”
      General Statutes § 53a-133 provides in relevant part: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking . . . .”

       That relevant portion of the state’s closing argument is as follows: “Now let me summarize what is undisputed in this case. What’s undisputed in this ease is that a robbery first degree was committed that a person with intent to take someone else’s property used force on another person to get that property to the—compel him to turn the property over and to keep him from—to help him escape, and the judge will give you the instructions but there’s really no dispute that a robbery was committed and there’s no dispute that the person who robbed the—the victim in this case, that person threatened to use—threatened to use a gun or indicated that he had a gun. So there is no dispute in this case, and defense will have the opportunity to respond if necessary but basically there’s no dispute that a robbery first degree [was] committed ... in this case.” Later in its presentation, the prosecution referred to this point stating: “And you have to decide ultimately, again, since it’s not disputed that a robbery first degree was committed here . . . .”

       The state made the following representation in response to the defendant’s objection. “Well, Your Honor, in our discussions without the jury present, counsel has previously indicated they weren’t disputing that a robbery first degree was committed, just that the defendant—there was obviously a dispute as to who committed it. And I—all I’m doing is I—I’m relying on that representation in my closing argument.”

       The defendant also claims that the trial court should have, sua sponte, given a curative instruction. We note, however, that the trial court’s instructions, clearly directing the jury not to consider any comments of trial counsel that were not. evidence, acted to preserve the fairness of the proceedings. See State v. Negron, 221 Conn. 315, 330-31, 603 A.2d 1138 (1992); State v. Wilson-Bey, 21 Conn. App. 162, 170-71, 572 A.2d 372, cert. denied, 215 Conn. 806, 576 A.2d 537 (1990). The defendant’s claim that an additional curative instruction was necessary is without merit.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    ERIC HOLCOMB v. COMMISSIONER OF CORRECTION
    (13577)
    Landau, Spear and Hennessy, Js.

      Argued November 30, 1994
    decision released September 26, 1995

      Beth A. Hogan, with whom, on the brief, was Conrad Ost Seifert, for the appellant (petitioner).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (respondent).
   SPEAR, J.

The dispositive issue in this appeal is whether it was proper for the trial court to grant the respondent’s motion for summary judgment on a habeas corpus petition. The petitioner asserts that granting the motion was plain error as the rules of practice do not provide for such a motion in a habeas corpus proceeding. We agree and reverse the judgment of the trial court.

In 1987, the defendant was arrested in Indiana. A lieutenant and a patrolman from the Middletown police department went to Indiana in June of 1987 to interview the petitioner concerning a series of burglaries in Mid-dletown. After a conference that was attended by the Middletown officers, the petitioner, the petitioner’s Indiana attorney, Indiana police officers and representatives of the prosecutor’s office in Indiana, the defendant signed a letter of understanding regarding the status of criminal files in Connecticut and Indiana. Thereafter, the defendant waived extradition proceedings and was returned to the state of Connecticut.

On November 29, 1988, the petitioner pleaded guilty, pursuant to the Alford doctrine, to six counts of burglary in the third degree, one count of burglary in the first degree, one count of criminal attempt to commit robbery in the third degree, three counts of larceny in the third degree, four counts of larceny in the sixth degree and two counts of theft of a firearm. He was sentenced to a total effective term of fifteen years, execution suspended after seven years, with five years probation. The sentence was consecutive to a sentence that the petitioner was serving in Indiana. After sentencing, the petitioner was returned to Indiana. The petitioner began serving his Connecticut sentence on June 25, 1992, and filed a pro se habeas corpus petition on January 22, 1993. Thereafter, the petitioner, through counsel, filed an amended petition alleging, inter alia, ineffective assistance of counsel.

The respondent filed an answer in June, 1993. On January 5, 1994, the respondent filed a motion for summary judgment alleging that as to count one “the plea canvass and sentencing transcript demonstrate that there is no genuine issue of material fact.” The respondent also alleged that counts two, three and four were legally insufficient because (1) they failed to allege “cause and prejudice,” and (2) they failed to allege that the petitioner had not deliberately bypassed a direct appeal to the Appellate Court. A transcript of the plea and sentencing hearings was attached to the motion for summary judgment.

After hearing arguments, the trial court rendered summary judgment in favor of the respondent and stated in its articulation that “the court placed considerable emphasis on the plea and sentencing transcripts and carefully considered the same. Absent the plea and sentencing transcripts, the court would not have granted summary judgment.”

This appeal ensued and the petitioner, for the first time, raises the claim that summary judgment is improper in a habeas corpus proceeding. Although he concedes that he did not object to the summary judgment on this ground in the trial court, he asks us to review this matter as plain error.

This court has stated that “[p]lain error is reserved for instances where the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings . . . .” (Citation omitted; internal quotation marks omitted.) Dime Savings Bank of New York v. Grisel, 36 Conn. App. 313, 318, 650 A.2d 1246 (1994). This court has also stated that “[w]e will, however, in the interest of justice notice [the] plain error notbroughtto the court’s attention.” (Internal quotation marks omitted.) State v. Harris, 10 Conn. App. 217, 230, 522 A.2d 323 (1987). We conclude that plain error review is appropriate because the rules of practice do not authorize a summary judgment motion in habeas corpus cases.

The respondent asserts that summary judgment is appropriate because it is not specifically excluded by the rules of procedure governing habeas corpus. The respondent further asserts that because habeas corpus proceedings are civil cases, all of the motions and pleadings that are available in a civil case are available in the habeas corpus proceeding.

We note that only two pleadings are specifically provided for in habeas corpus proceedings. Practice Book §§ 532 and 534. Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to a return.” Practice Book § 534 provides: “The applicant may file a motion to strike the return, or he may deny any of the facts set forth in it or he may reply to such return alleging any other facts that may be material to the case. Any such pleading shall be filed on or before the time set for the hearing unless the court or judge further extends the time therefor. If further pleadings are required the judge shall set the time for their filing.”

There would be no need for Practice Book §§ 532 and 534 if the rules governing civil cases applied to habeas corpus proceedings. The parties would simply follow the rules that apply to civil cases generally. Furthermore, Practice Book § 534 allows further pleadings if required whereas a party in a civil case has a right to file a motion for summary judgment at any time with certain exceptions.

Although the respondent correctly asserts that habeas corpus matters are civil proceedings; see Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); historically, habeas corpus pleadings have developed differently from those for other civil cases. “At common law habeas coipus was a formalistic proceeding. The application played no role in framing the issues, its only purpose being to secure the issuance of the writ. . . . The return, whose truth could not be contested . . . limited the proceeding to the determination of a question of law. Early on the legislature corrected this deficiency by permitting the statements in the return to be contested. ... At that point and until fairly recently the issues on which a subsequent trial was to be held were framed by the return and the pleadings subsequent thereto. ... In recent years the application has come to be regarded as a pleading in the nature of a complaint . . . and the return in the nature of an answer. . . . Once the issues have been joined the evidence proffered must be relevant to these issues.” (Citations omitted.) Arey v. Warden, 187 Conn. 324, 331-32, 445 A.2d 916 (1982).

Prior to joining issue by the return, the respondent could have raised his claim that counts two, three and four are legally insufficient by a motion to quash pursuant to Practice Book § 532. “A motion to quash may be used to attack a writ of habeas corpus for defects appearing on the face of the writ. ... A motion to quash is the equivalent to a [motion to strike] a complaint in a civil action and seeks to test the legal sufficiency of the allegations of the petition.” (Citations omitted.) Santiago v. Warden, 27 Conn. App. 780, 784-85, 609 A.2d 1023, cert. denied, 223 Conn. 916, 614 A.2d 780 (1992). The respondent, therefore, was not without a remedy to attack the claimed insufficiency of the last three counts of the petition.

In addition to relying on the lack of authority in the rules of practice for a summary judgment motion, the petitioner argues that Mercer v. Commissioner of Correction, 230 Conn. 88, 644 A.2d 340 (1994), is disposi-tive. In Mercer, the petitioner alleged ineffective assistance of both trial and appellate counsel with respect to the trial court’s raising the issue of acquired immune deficiency syndrome with venirepersons during juiy selection for his trial on the charge of felony murder. The habeas court dismissed the petition on the ground that the Supreme Court had ruled on those issues in his direct appeal and found that he had received a fair trial. This court followed the same reasoning in affirming the trial court’s judgment. Mercer v. Commissioner of Correction, 31 Conn. App. 771, 626 A.2d 831 (1993). The Supreme Court reversed this court stating: “Because our affirmance was predicated on the record then before this court, the petitioner contends that he is entitled to an opportunity to present further evidence to support his claim that inadequate assistance of counsel deprived him of a fair trial. We agree. ” Mercer v. Commissioner of Correction, supra, 230 Conn. 92. In reversing this court, the Supreme Court stated: “Both statute and case law evince a strong presumption that a petitioner for a writ of habeas corpus is entitled to present evidence in support of his claim.” Id.

We do not agree that Mercer is dispositive. In Mercer, the trial court reviewed the proceedings that resulted in the conviction and concluded that the petitioner had effective assistance of counsel. This decision was rendered without giving the petitioner an opportunity to present any type of evidence in support of his claim of ineffective assistance of counsel. Here, although the trial court similarly based its decision on a review of the plea process that led to the conviction, the petitioner had the opportunity to present documentary evidence in opposition to the motion for summary judgment. He in fact did present his own affidavit.

In addition to the history of habeas corpus proceedings and the lack of a rule of practice providing for summary judgment motions in habeas corpus cases, we find further support for our decision in General Statutes § 52-470 (a), which provides: “The court or judge hearing any habeas corpus shall proceed in a summary way to determine the facts and issues of the case, by hearing the testimony and arguments therein, and inquire fully into the cause of imprisonment, and shall thereupon dispose of the case as law and justice require.” (Emphasis added.) We conclude that the trial court committed plain error by deciding this case on a motion for summary judgment.

The judgment is reversed and the case is remanded with direction to dismiss the motion for summary judgment as improper.

In this opinion the other judges concurred.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       The parties advised the court at oral argument that a number of rules regarding habeas corpus were being prepared for consideration by the judges of the Superior Court. One of the proposed rules would allow summary judgment motions in habeas corpus proceedings. This lends further credence to our conclusion that, absent a rule, summary judgment is not proper in a habeas corpus proceeding.

       Practice Book § 379 provides in relevant part: “In any action . . . any party may move for a summary judgment at any time, except that the party must obtain the court’s permission to file a motion for summary judgment after the case has been placed on the assignment list or has been assigned for trial.”

        Mercer v. Commissioner of Correction, supra, 230 Conn. 88, was released after the petitioner filed his brief.


author: LANDAU, J.

text:
    RAPAPORT AND BENEDICT, P.C., ET AL. v. CITY OF STAMFORD ET AL.
    (13007)
    Dupont, C. J., and Lavery and Landau, Js.

      Argued May 25
    decision released September 26, 1995

      William C. Turney, for the appellants (plaintiffs).

      John F. Fallon, for the appellees (defendants).
   LANDAU, J.

This is an appeal from the trial court’s granting of the defendants’ motion to dismiss the plaintiffs’ complaint. The plaintiffs claim that the trial court improperly (I) dismissed the complaint as to the named plaintiff, Rapaport and Benedict, P.C. (Rapaport), in that Rapaport’s standing as a tliird party beneficiary provided a direct right of access to the Superior Court, (2) concluded that the plaintiff Joseph Reilly failed to exhaust his contractual remedies, (3) failed to hold an evidentiary hearing, and (4) failed to construe a disputed issue of fact in the plaintiffs’ favor.

Neither the facts nor the procedural posture of this case are in dispute. In December, 1990, Reilly was a captain in the Stamford police department, working pursuant to the terms of a collective bargaining agreement between the city of Stamford (city) and the Stamford Police Association (union). At that time, the Stamford board of ethics initiated an investigation of Reilly and other city employees. As a member of the union, Reilly was entitled to legal counsel from the city under the terms of the collective bargaining agreement. After Reilly requested legal representation, the Stamford corporation counsel informed him that such representation could not be provided due to a conflict of interest.

Pursuant to his understanding of the agreement, Reilly engaged the services of Rapaport to represent him in connection with the proceedings before the board of ethics. During 1991 and 1992, Reilly incurred $135,376.84 in legal fees for Rapaport’s services. The city reimbursed $30,973.41 of that sum, but has refused to make any further payment.

The collective bargaining agreement between the city and the police association provides that certain disputes are to be resolved through a grievance and arbitration process. On October 6, 1992, Reilly requested that the union file a grievance on his behalf for the purpose of compelling the payment of the outstanding legal fees. The city subsequently denied Reilly’s grievance.

On February 22,1993, the plaintiffs filed a four count amended complaint. In the first count, Reilly alleged a breach of contract arising from the city’s refusal to reimburse the full amount of legal fees incurred. In count two, Rapaport also alleged breach of contract, claiming that it was entitled to damages as a third party beneficiary of the agreement between the city and the union. Both plaintiffs claimed in count three that they had relied to their detriment on the city’s partial payment of Rapaport’s legal fees by continuing the attorney-client relationship and thereby incurring additional legal fees. In the last count, the plaintiffs alleged that the defendants had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

The defendants filed a motion to dismiss the complaint, asserting that because the plaintiffs failed to exhaust the contractual remedies available to them under § 22 of the collective bargaining agreement, the trial court lacked subject matter jurisdiction. The defendants argued that § 22 mandates that Reilly had to resort to arbitration when his grievance was not resolved to his satisfaction. They asserted that Reilly made no attempt to seek arbitration and that the plaintiffs failed to allege exhaustion of available contractual remedies in their complaint. After a hearing, the trial court agreed with the defendants’ argument and granted the motion to dismiss. This appeal followed.

I

The plaintiffs first claim that the trial court improperly concluded that Rapaport was not a third party beneficiary of the collective bargaining agreement and therefore lacked standing to bring an action against the defendants.

“The absence of standing precludes the existence of a court’s subject matter jurisdiction and requires dismissal of the claim. ” Third Taxing District v. Lyons, 35 Conn. App. 795, 798, 647 A.2d 32, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994). “Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. . . . Unisys Corp. v. Dept. of Labor, 220 Conn. 689, 693, 600 A.2d 1019 (1991).” (Internal quotation marks omitted.) Presidential Capital Corp. v. Reale, 231 Conn. 500, 504, 652 A.2d 489 (1994).

“A third party beneficiary may enforce a contractual obligation without being in privity with the actual parties to the contract. See J. Calamari & J. Perillo, Contracts (3d Ed. 1987) §§ 17-1 through 17-4, pp. 691-719. Therefore, a third party beneficiary who is not a named obligee in a given contract may sue the obligor for breach. Id.” Gateway Co. v. DiNoia, 232 Conn. 223, 230-31, 654 A.2d 342 (1995). Thus, if the trial court correctly determined that Rapaport was not a third party beneficiary of the collective bargaining agreement, entitled to enforce its terms, it likewise correctly dismissed the complaint as to Rapaport for lack of subject matter jurisdiction.

In our analysis, we must observe the appropriate standard of appellate review. When “the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. Practice Book § 4061; United Illuminating Co. v. Groppo, 220 Conn. 749, 752, 601 A.2d 1005 (1992); Zachs v. Groppo, 207 Conn. 683, 689, 542 A.2d 1145 (1988); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53, 607 A.2d 424 (1992). [W]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . Mulligan v. Rioux, 229 Conn. 716, 740, 643 A.2d 1226 (1994).” (Internal quotation marks omitted.) Gateway Co. v. DiNoia, supra, 232 Conn. 229. In this case, the trial court’s determination that the collective bargaining agreement did not create a third party beneficiary constituted a question of law. As in Gateway, the trial court in this case did not hear testimony concerning the intent of the parties. Rather, it based its decision that Rapaport was not a third party beneficiary exclusively on its reading of the collective bargaining agreement and the arguments of counsel at the hearing on the motion to dismiss. Consequently, our review of the trial court’s ruling is plenary. See id., 230.

“The proper test to determine whether a [contract] creates a third party beneficiary relationship is whether the parties to the [contract] intended to create a direct obligation from one party to the [contract] to the third party.” Id., 231. We therefore must determine whether the city and the union intended that the city assume a direct obligation to Rapaport. “Although ordinarily the question of contractual intent presents a question of fact for the ultimate fact finder, where the language is clear and unambiguous it becomes a question of law for the court. . . . When the plain meaning and intent of the language is clear, a clause in a written lease cannot be enlarged by construction. There is no room for construction where the terms of a writing are plain and unambiguous, and it is to be given effect according to its language.” (Citations omitted; internal quotation marks omitted.) Id., 232.

In this case, the relevant section of the collective bargaining agreement provides that, if a member of the union seeks outside legal representation due to a conflict of interest on behalf of the corporation counsel, “the City shall reimburse the [union] for all legal fees which are incurred in the defense of any such member of said [union].” These terms plainly and unambiguously dictate that the parties to the agreement intended to create a direct obligation from the city to a member of the union, such as Reilly. These same terms, however, cannot be read as creating a direct obligation to the firm providing legal services to the union member. We conclude, as a matter of law, that the plain language of the collective bargaining agreement between the city and the union does not create a direct obligation from the city to Rapaport and that, accordingly, Rapaport was not intended to be a third party beneficiary of the agreement. Because Rapaport does not have the legal status of a third party beneficiary, the trial court properly dismissed the complaint as to Rapaport.

II

The plaintiffs next claim that the trial court improperly concluded that Reilly failed to exhaust his contractual remedies and, therefore, dismissed the complaint as to Reilly for lack of subject matter jurisdiction. We disagree.

“ ‘It is well settled under both federal and state law that, before resort to the courts is allowed, an employee must at least attempt to exhaust exclusive grievance and arbitration procedures, such as those contained in the collective bargaining agreement between the [city] and the [association]. Vaca v. Sipes, 386 U.S. 171, 184, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967); Republic Steel Corporation v. Maddox, 379 U.S. 650, 652, 85 S. Ct. 614, 13 L. Ed. 2d 580 (1965); Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 500, 522 A.2d 264 (1987); School Administrators Assn. v. Dow, [200 Conn. 376, 381-82, 511 A.2d 1012 (1986)].’ Daley v. Hartford, [215 Conn. 14, 23, 574 A.2d 194, cert. denied, 498 U.S. 982, 111 S. Ct. 513, 112 L. Ed. 2d 525 (1990)]. Failure to exhaust the grievance procedures deprives the court of subject matter jurisdiction. Id.; School Administrators Assn. v. Dow, supra, 382.” Labbe v. Pension Commission, 229 Conn. 801, 811, 643 A.2d 1268 (1994).

In this case, Reilly did resort to the grievance and arbitration procedure specified in § 22 of the collective bargaining agreement. Previous to filing his complaint in the Superior Court, Reilly requested that the union submit a grievance on his behalf based on the city’s failure to pay his legal bills. There is no dispute that after the city denied his grievance, Reilly failed to pursue further the remedies available under § 22. He now asserts that the dispute in question involves a nonarbi-trable matter, that the question of legal fees does not fall under the provisions of § 22 in that it does not concern “wages, hours or conditions of employment.” The trial court determined that § 22 was applicable to the dispute and that the plaintiffs had failed to avail themselves of the available remedies provided by that section.

“ ‘This court has long followed the rule that the arbi-trability of a dispute is a legal question for the court unless the parties have clearly agreed to submit that question to arbitration.’ ” Bridgeport v. Bridgeport Police Local 1159, 183 Conn. 102, 104, 438 A.2d 1171 (1981), quoting Board of Education v. Frey, 174 Conn. 578, 580, 392 A.2d 466 (1978). Therefore, our review of the trial court’s decision as to the applicability of § 22 is plenary.

In determining if a particular dispute is subject to the arbitration provisions of a contract, the judicial inquiry “ ‘ “must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance. ... An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” ’ ” (Emphasis in original.) John A. Errichetti Associates v. Boutin, 183 Conn. 481, 488-89, 439 A.2d 416 (1981), quoting Board of Education v. Frey, supra, 174 Conn. 582.

Section 22 of the collective bargaining agreement details the mandatory grievance and arbitration procedure for when an employee is aggrieved “concerning his . . . wages, hours or conditions of employment . ...” An association member’s entitlement to reimbursement for outside legal representation under § 23 (A) constitutes a “condition of employment” as that term is used in § 22 (A). The term “conditions of employment” has been defined as encompassing “the entire spectrum of conditions and benefits which apply to public employment, in addition to the commonly understood basic provisions relating to pay and hours of work, including but not limited to: seniority, grievance procedures, holiday and vacation pay, shift premiums, sick leave, jury duty, pensions and severance pay, insurance coverage of various kinds, seniority in promotions, transfers and layoffs, discipline and discharge and grievance arbitration provisions.” (Internal quotation marks omitted.) Board of Police Commissioners v. White, 171 Conn. 553, 560, 370 A.2d 1070 (1976); see Greater Bridgeport Transit District v. State Board of Labor Relations, 232 Conn. 57, 63, 653 A.2d 151 (1995). It was a condition of Reilly’s employment under the collective bargaining agreement that the city would pay his legal fees under certain circumstances. Disputes between the parties to the agreement with regard to that obligation were subject to the provisions of § 22. For this reason, the trial court correctly concluded that Reilly failed to exhaust his contractual remedies and that his complaint had to be dismissed for lack of subject matter jurisdiction.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs in this case are Rapaport and Benedict, P.C., a Stamford law firm, and Joseph Reilly. The defendants are the city of Stamford; the board of finance of the city of Stamford; Joseph Tarzia, Daniel P. Malloy, Robert Harris, John Mallozzi, William J. McManus and David W. Schropfer, members of the board of finance of the city of Stamford; Patrick O’Connor, commissioner of finance of the city of Stamford; Peter Mynarski, treasurer of the city of Stamford; and Margaret Brown, comptroller of the city of Stamford.

       Section 23 (A) of the collective bargaining agreement provides: “The City shall provide legal counsel for the defense of any member of the Association against whom a complaint originating from outside the Stamford Police Department has been filed which could result in the discipline and/ or suspension of any member. The Corporation Counsel shall assume the legal defense of said member unless there is a conflict of interest. In the event that such a conflict of interest exists, the City shall reimburse the Association for all legal fees which are incurred in the defense of any such member of said Association. Said fees shall be reasonable and shall not be reimbursable if it is determined by either the Stamford Police Commission or other initial fact finder that the member’s activities from whence the complaint arose were not within the scope of his authority as apolice officer for the City of Stamford.”

       Section 22 of the collective bargaining agreement provides in pertinent part: “(A) Should any employee or group of employees feel aggrieved, concerning his [or] their wages, hours or conditions of employment (including any claim that a permanent employee was removed, dismissed, discharged, suspended, fined or reduced in rank without just cause), adjustment shall be sought as follows:

        “1. The Association shall submit such grievance in writing to the Chief of Police, setting forth the nature and particulars of the grievance. . . .
      “2. If such grievance is not resolved to the satisfaction of the Association by the Chief within eight (8) days after the receipt of the grievance by him, the Association may present such grievance in writing within seven (7) days thereafter to the Police Commission. . . .
      “(B) If such grievance is not resolved to the satisfaction of the Association by the Police Commission within fifteen (15) days after the receipt of the grievance by it, or if the City shall desire to have any dispute with the Association concerning the interpretation or performance of this agreement resolved by arbitration, the Association, within ten (10) days after the expiration of said fifteen (15) day period, or the City, within ten (10) days of the last discussion between the Police Commission and the Association, may submit the dispute to the Connecticut State Board of Mediation and Arbitration for arbitration .... The decision of the arbitrator shall be binding and conclusive upon the City and the Association. The findings, decision or award of said arbitrator may be enforced by proper action in any court of competent jurisdiction. . . .
      “(D) Nothing contained herein shall prevent an employee from presenting his own grievance and representing himself. . . .”

       Relying on Flynn v. Newington, 2 Conn. App. 230, 477 A.2d 1028, cert. denied, 194 Conn. 804, 482 A.2d 709 (1984), the plaintiffs also assert that, as a third party beneficiary, Rapaport was entitled to bring its action without first exhausting any contractual remedies afforded by the collective bargaining agreement. In Flynn, we recognized that “[t]he signatories to a collective bargaining agreement are not the only entities with rights which arise from that contract. The trustees of a pension and welfare fund are third party beneficiaries of the agreement and are not bound by the grievance-arbitration provisions of an agreement under federal law statutes, allowing them a direct right of access to the courts, without the necessity of arbitration. Robbins v. Prosser’s Moving & Storage Co., 700 F.2d 433, 436-37 (8th Cir. 1983).” Id., 238. Because we conclude that Rapaport was not a third party beneficiary, it is unnecessary to address this claim.

       “ ‘Privity’ in this context refers to ‘those who exchange the promissory words or those to whom the promissory words are directed.’ J. Calamari & J. Perillo, Contracts (3d Ed. 1987) § 17-1, p. 691.” Gateway Co. v. DiNoia, 232 Conn. 223, 230 n.6, 654 A.2d 342 (1995).

       We note that “[c]ommentators generally look upon the intent of the promisee, if the promisee had any relevant intent, as governing whether a third party may enforce a contract as a donee beneficiary. Restatement (Second), Contracts, c. 6, Introductory Note and § 133 (Tent. Draft 1973); 2 Williston, Contracts (3d Ed.) § 356A, pp. 836, 839 n.19; 4 Corbin, Contracts § 776, p. 16.
      “Williston has criticized Colonial Discount Co. v. Avon Motors, Inc., 137 Conn. 196, 75 A.2d 507 (1950) and Byram Lumber & Supply Co. v. Page, 109 Conn. 256, 146 A. 293 (1929) for proposing as a universal test of third party rights the intent of the contracting parties to impose on the promisor a direct obligation to the third party. 2 Williston, [supra], pp. 838-39.
      “Corbin views the ideas that lie behind such terms as ‘purpose,’ ‘motive,’ and ‘intention’ as obscure and elusive. 4 Corbin, [supra], § 776, pp. 14-15. The problem before the courts, he says, ‘is to draw the line between those third persons whose benefit is so indirect and incidental that it is not sound policy to let them enforce the contract, and those other persons whose benefit is so direct and substantial and so closely connected with that of the promisee that it is economically desirable to let them enforce it. The law would profit greatly if the courts would concentrate upon this aspect of the problem and cease to state the questions merely in terms of the supposed “intent” of the parties.’ 4 Corbin, [supra], § 786, p. 95.” Stowe v. Smith, 184 Conn. 194, 196-97 n.1, 441 A.2d 81 (1981).

       See footnote 2.

       See footnote 3.

       Because we conclude that the trial court properly dismissed the complaint as to both plaintiffs for lack of subject matter jurisdiction, we need not address the plaintiffs’ remaining two claims.


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. KEVIN SPARKS
    (13528)
    Dupont, C. J., and Foti and Herman, Js.

      Argued June 5
    decision released September 26, 1995

      Carol R. Goldberg, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen Sedensky III, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). On appeal, the defendant claims that the trial court improperly (1) denied his motion to suppress two out-of-court identifications, (2) failed to instruct the jury on an essential element of the offense of robbery in the first degree, and (3) denied his motion for judgment of acquittal on the ground that the evidence was insufficient to support a conviction. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Early in the evening of March 15,1993, the victims, Wendy Gerstel and Michael Derryberry, drove to the P. T. Barnum apartments in Bridgeport to purchase drugs. Gerstel was driving Derryberry’s car, a red Honda Prelude with a ski rack. As they approached building one, Gerstel parked the car and got out. Gerstel was approached by the defendant and three other black men. The defendant put a gun to her head and demanded money. The defendant kept the gun at Gerstel’s head and took approximately $15 from her pocket. Two of the men with the defendant searched her pockets while the third directed them. The third man then told the others to take Derryberry’s car.

The four men ran to the car which was still occupied by Derryberry. The defendant went to the passenger side, pointed the gun at Derryberry and told him to get out. When Derryberry exited the car, two of the men searched the inside of the car. Another man then drove the car away. As Derryberry and Gerstel walked away, Derryberry was struck from behind by a blunt object and fell to the ground. When Derryberry looked behind him he saw the defendant and another man.

The victims ran to a gas station to call the police. As they approached the gas station, the victims observed a police cruiser near the intersection of Fairfield Avenue and Albion Street. They flagged the cruiser down and got into the vehicle. The victims told the police officers what had occurred, and the officers broadcast a description and the license plate number of the vehicle. They then drove around the P. T. Barnum apartment complex looking for the vehicle until they received a radio transmission that the vehicle had been found stuck in a snowbank, and that a suspect had been apprehended after he exited the vehicle.

The suspect, who was the defendant, was identified as one of the perpetrators by both victims while they were sitting in the police cruiser. The victims again identified the defendant as a perpetrator from a photographic array. At trial, the victims both made in-court identifications of the defendant as one of the men who robbed them.

I

The defendant first asserts that the trial court improperly denied his motion to suppress (1) the identification of the defendant at the P. T. Barnum apartment complex, and (2) the subsequent identification of the defendant from a photographic array. We are unpersuaded.

Certain additional facts are necessary for an understanding of our resolution of this issue. At the hearing on the defendant’s motion to suppress, both victims testified to the events surrounding the robbery and to their reporting the robbery to the police. Gerstel testified that her confrontation with the defendant and the three men lasted about five minutes, that the men were in very close proximity to her, and that she had no trouble seeing the defendant. In addition, Gerstel testified that her attention was focused on the defendant because he had the gun. Derryberry testified that, although it was dark, the area was well lit and he was able to see the defendant.

Both victims then testified that they had flagged down a police car. Gerstel testified that she told the police what had happened and that the man with the gun was a young, heavyset, black male, wearing a black jacket with orange lettering. Derryberry gave the police a description of his car. Both victims then testified that they rode in the police vehicle looking for Derryberry’s car and the suspects. Derryberry testified that he had heard over the police radio that his vehicle had been found.

Both victims further testified that they were brought back to the P. T. Bamum apartment complex less than twenty minutes after the robbery to view a suspect that the police had apprehended after he exited Derryberry’s vehicle. The suspect, who was surrounded by three officers, was the defendant. Both victims were asked if the defendant was the person who had assaulted and robbed them. Gerstel testified that she was certain that the defendant was the person who had robbed her and stated that she would remember a person who stuck a gun in her face. Derryberry also identified the defendant as the man who had been involved in the robbery, stating that he recognized the man’s jacket, his figure and the mark on his head. The victims also testified that a second man was also stopped, but that he was released because neither of them could positively identify him as having been involved in the robbery.

Both victims further testified that they went to police headquarters and were separately shown a photographic array consisting of six photographs. Both testified that the police did not direct them toward any photograph, but merely asked them to examine the array for a photograph of the person who had robbed them. Gerstel testified that she told the officer that she thought that photograph number five was of the person who had robbed her. Photograph number five was a photograph of the defendant. Derryberry also identified the defendant’s photograph in the array.

The trial court denied the defendant’s motion to suppress both out-of-court identifications, determining that neither identification procedure was unnecessarily suggestive. We agree with the determination of the trial court.

“The due process clause of the fourteenth amendment to the United States constitution requires the exclusion of identification evidence . . . when the identification procedure used was so impermissibly suggestive as to give rise to a very substantial likelihood of an irreparable misidentification. . . . State v. Biggs, 13 Conn. App. 12, 17, 534 A.2d 1217 (1987), cert. denied, 207 Conn. 801, 540 A.2d 73 (1988), citing Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Anderson, 178 Conn. 287, 291, 422 A.2d 323 (1979); see also State v. Fields, 31 Conn. App. 312, 320, 624 A.2d 1165, cert. denied, 226 Conn. 916, 628 A.2d 989 (1993).” (Internal quotation marks omitted.) State v. Carswell, 36 Conn. App. 336, 340-41, 650 A.2d 924 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995).

“It is well settled that [i]n determining whether identification procedures violate a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive, and second, if it is found to be so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances.” (Internal quotation marks omitted.) Id., 341; see also State v. Gant, 231 Conn. 43, 70, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995); State v. Monteeth, 208 Conn. 202, 206, 544 A.2d 1199 (1988).

The burden rests on the defendant who moves to suppress identification evidence to establish that the identification resulted from the employment of an unconstitutional procedure by the police. State v. Payne, 219 Conn. 93, 106, 591 A.2d 1246 (1991); State v. Williams, 203 Conn. 159, 173-74, 523 A.2d 1284 (1987). Our review of the record leads us to conclude that the defendant failed to meet his burden, and that the trial court acted properly in denying the motion to suppress.

A

We turn first to the identification of the defendant by the victims at the P. T. Barnum apartments. “While a one-on-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive, it does not automatically follow that such a show-up is impermissibly suggestive. . . . Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay. ” (Citation omitted; internal quotation marks omitted.) State v. Barnes, 16 Conn. App. 333, 344, 547 A.2d 584 (1988); see also State v. Collette, 199 Conn. 308, 310-11, 507 A.2d 99 (1986); State v. Hamele, 188 Conn. 372, 376-77, 449 A.2d 1020 (1982).

Here, the show-up took place less than twenty minutes after the robbery. The circumstances surrounding the crime were fresh in the victims’ minds. The defendant matched the description given to the police by Gerstel and he was seen exiting a car that matched the description given by Derryberry. The victims told the police that four people had been involved in the crime, and it was important for the police to ascertain whether the defendant was one of them. See State v. Barnes, supra, 16 Conn. App. 344. The delay that would have been caused by requiring the officers to assemble a lineup would have prevented them from attempting to apprehend the other perpetrators of the crime. We conclude, therefore, that the trial court properly determined that the identification of the defendant at the P. T. Bamum apartments was not unnecessarily suggestive but proper under the circumstances.

Furthermore, there was not a “substantial likelihood of irreparable misidentification” that would render the identification unnecessarily suggestive. State v. Outlaw, 216 Conn. 492, 501, 582 A.2d 751 (1990). “[T]he factors to be considered in evaluating the likelihood of misiden-tification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” (Internal quotation marks omitted.) State v. Middleton, 170 Conn. 601, 607, 368 A.2d 66 (1976).

Both victims testified they had a clear view of the person with the gun and they were exposed to him long enough to recall his appearance. According to Gerstel, the person with the gun wore a distinctive jacket and the defendant was wearing such a jacket when he was apprehended. At the time of the on-street identification, both witnesses were certain that the defendant was the person who had held the gun during the robbery. Of great importance too is the fact that when it was suggested to Gersel that her identification of the defendant turned on the fact that the cruiser was stopped in front of the defendant and that he was surrounded by three officers, she replied that she remembered him instead “[b]ecause when somebody sticks a gun in your face, you remember that person.” Finally, only twenty minutes had elapsed between the time of the robbery and the identification of the defendant by the victims. We also note that the victims were shown a second man under circumstances similar to those in which they saw the defendant and, in that case, they were unable to identify that person as having been involved in the robbery and he was immediately released. The defendant has failed to show that the identification at the P. T. Bamum apartments was unnecessarily suggestive.

B

We turn next to the claim regarding the out-of-court identification of the defendant from the photographic array. “The presentation of an array of several photographs to witnesses, including that of the suspect, does not constitute an impermissibly suggestive pretrial identification procedure in the absence of any unfairness or other impropriety in the conduct of the exhibit.” (Internal quotation marks omitted.) State v. White, 229 Conn. 125, 162, 640 A.2d 572 (1994); see also State v. Carswell, supra, 36 Conn. App. 342.

Here, the defendant did not introduce evidence of unfairness or other impropriety in the presentation of the photographic array. No evidence was introduced that the photograph of the defendant was different in any meaningful way from the other photographs in the array. Nor did the defendant establish that the police in any way suggested to the victims which person they should identify. See State v. Carswell, supra, 36 Conn. App. 342. In fact, the photographs were presented to the victims in such a manner that no one stood out from the others. Nothing in the evidence before the trial court would support a finding that the out-of-court photographic identification by either victim was in any way tainted by any form of impermissible suggestion or direction.

The defendant has failed, therefore, to meet his initial burden of establishing that the out-of-court photographic identification resulted from some impermissi-bly suggestive identification procedure on the part of the police. The trial court properly denied the defendant’s motion to suppress both out-of-court identifications.

II

The defendant next asserts that the trial court failed to charge the jury properly as to an essential element of the crime of robbery in the first degree. In support of this claim, the defendant asserts that the trial court was obligated to define the term “firearm” as set forth in General Statutes § 53a-3 (19). We are not persuaded.

The following facts are necessary for the resolution of this claim. At trial, the victims testified that the gun displayed by the defendant had a chrome colored barrel, a dark handle and an ammunition clip. They each testified that the gun was not a revolver. In its charge to the jury, the trial court defined the offenses of larceny, robbery and robbery in the first and third degree. In defining robbery in the first degree, the trial court informed the jury that the state did not need to prove that the defendant had a weapon or that it was operable, but only that the defendant represented by his words or conduct that he was armed. The trial court did not give the jury the statutory definition of the term “firearm.” The defendant took no exception to the trial court’s failure to charge the jury as to the definition of a firearm.

The defendant seeks review of this unpreserved claim under the well known rubric of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The record here is adequate to review the alleged claim and the claim is of constitutional magnitude because the defendant asserts that the trial court failed to instruct the jury on an essential element of the crime charged. See State v. Tweedy, 219 Conn. 489, 510, 594 A.2d 906 (1991); State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). We conclude, however, that the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial because the existence of an actual firearm is not an essential element of robbery in the first degree.

The essential element of the crime with which the defendant stands convicted is that the state establish beyond a reasonable doubt that the defendant, during the course of the robbery, “displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .” (Emphasis added.) General Statutes § 53a-134 (a) (4). This portion of the statute is satisfied when there is proof beyond a reasonable doubt that the defendant represented by his words or conduct that he had a firearm. State v. Hawthorne, 175 Conn. 569, 573, 402 A.2d 759 (1978); State v. Hansen, 39 Conn. App. 384, 666 A.2d 421 (1995). It is not necessary that the defendant actually have a gun in order to violate this section of the statute. State v. Dolphin, 195 Conn. 444, 449, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Hansen, supra, 401.

The argument advanced by the defendant that the trial court must define the term firearm, therefore, is unpersuasive. Our Supreme Court has held that “[r]ob-bery is an offense against the person, the distinguishing characteristic of which is the intimidation of the victim. The ability of a defendant actually to do what he has threatened, therefore, is not an essential element of this crime. ... It borders on the absurd ... to hold on the one hand that the state need not prove the operability or even the existence of a weapon to obtain a conviction of first degree robbery under General Statutes § 53a-134 (a) (4), yet at the same time to require evidence of the apparent length of the weapon’s barrel when the defendant is charged under the identical subsection with having displayed what he represented by his words or conduct to be a pistol or revolver. That the length of the gun’s barrel is specified in the statutory definition of pistol or revolver under General Statutes § 53a-3 (18) is no more significant to us here than was the requirement of operability contained in the statutory definition of firearm in [State v. Hawthorne, supra, 175 Conn. 573], The essential element of General Statutes § 53a-134 (a) (4) is the representation by a defendant that he has a firearm . . . not the specific identifying characteristics of the weapon alleged in the information.” (Citations omitted; internal quotation marks omitted.) State v. Gaines, 196 Conn. 395, 400-401, 493 A.2d 209 (1985). The state was, therefore, not required to prove that the weapon used met the statutory definition of firearm, nor was the trial court required to inform the jury of that statutory definition.

We thus conclude that the essential element of the crime of robbery in the first degree under § 53a-134 (a) (4) is the display of or the threat of the use of what the peipetrator represents by his words or conduct to be one of the enumerated proscribed weapons. The definition of the word firearm is neither an element of the statute nor relevant to the resolution of the occurrence of the crime.

Thus, we conclude that there was no constitutional violation that deprived the defendant of a fair trial. State v. Golding, supra, 213 Conn. 239-40.

III

Finally, the defendant asserts that the trial court improperly denied his motion for judgment of acquittal when the evidence was insufficient to establish beyond a reasonable doubt the identity of the defendant as the perpetrator of the offense. In support of his claim, the defendant points specifically to claimed contradictions in the testimony of the witnesses. We are unpersuaded.

When reviewing sufficiency of the evidence claims, we impose a two part analysis. “We first construe the evidence in the light most favorable to sustaining the verdict. . . . We next determine whether, from that evidence and all the reasonable inferences that flow from the evidence, a trier of fact could reasonably find that the defendant was guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Patterson, 35 Conn. App. 405, 412-13, 646 A.2d 258 (1994), citing State v. Salz, 226 Conn. 20, 31, 627 A.2d 862 (1993). “In this process of review, the probative force of the evidence is not diminished because it consists, in whole or in part, of evidence that is circumstantial rather than direct.” State v. Scales, 38 Conn. App. 225, 228, 660 A.2d 860 (1995); State v. Salz, supra, 31; State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990). Even in the most serious of criminal cases, proof of the identification of the perpetrator may be proved by circumstantial rather than direct evidence. State v. Rivera, 32 Conn. App. 193, 201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

“The jury’s sole province as the trier of fact is to draw all reasonable and logical inferences from the facts as it finds them to exist. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, 506 U.S. 872, 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992); State v. Hooks, [30 Conn. App. 232, 239, 619 A.2d 1151, cert. denied, 225 Conn. 915, 623 A.2d 1025 (1993)]. The jury also has the sole and absolute responsibility to weigh conflicting evidence and to determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778-79, 601 A.2d 521 (1992); State v. Hooks, supra [239]. The issue of the identification of the accused as the perpetrator of the crime is peculiarly one of fact to be resolved by the jury. State v. Smith, 138 Conn. 196, 201, 82 A.2d 816 (1951).” State v. Rivera, supra, 32 Conn. 201-202. “If evidence, whether direct or circumstantial, should convince a jury beyond a reasonable doubt that an accused is guilty, that is all that is required for a conviction.” State v. Smith, supra, 200.

The test for determining whether the evidence is sufficient to sustain a verdict is thus “whether the [trier of fact] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .” (Internal quotation marks omitted.) State v. Haddad, 189 Conn. 383, 387, 456 A.2d 316 (1983); State v. Salz, supra, 226 Conn. 31.

The defendant asserts several factors that he claims dimmish the reliability of the identification testimony of the two victims heard by the jury at trial. The fact remains, however, that the victims made three identifications of the defendant as the perpetrator of the robbery—near the scene of the crime, at police headquarters, and in court. The jury had before it all of the allegedly corrupting influences that the defendant claims undermine the efficacy of the identifications. In this context, we rely on “the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence is customary grist for the jury mill.” (Internal quotation marks omitted.) State v. Rivera, supra, 32 Conn. 203, quoting State v. Fullwood, 193 Conn. 238, 254, 476 A.2d 550 (1984).

“In considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Citation omitted; internal quotation marks omitted.) State v. Patterson, supra, 35 Conn. App. 414.

As we have stated, the issue of whether the defendant perpetrated the crime was properly a question of fact to be resolved by the jury. State v. Rivera, supra, 32 Conn. App. 201. The jury had before it the unequivocal and certain identification of the defendant made by the two victims within twenty minutes of the crime. The jury had before it the evidence of the photographic identifications by the victims as well as their assertions in court that the defendant was the person with the gun who had committed the robbery. The jury had before it all of the impeachment evidence offered by the defendant in his cross-examination of the victims and of the police officers who were involved in the various identification proceedings. In short, the jury was in a unique position to access the credibility of the witnesses and to make a determination as to whether they believed the victims when they asserted that the defendant was the person who robbed them. Thus, the record more than adequately satisfies us that the evidence was clearly sufficient for the jury to have determined the identification of the defendant as the perpetrator of the crime.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in pertinent part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       The defendant further asserts that the in-court identifications of the defendant by the victims must also be suppressed because they were tainted by the constitutionally impermissible out-of-court identifications. Because we conclude that neither of the out-of-court identifications by the victims was constitutionally impermissible, we need not address this claim. State v. Carswell, 36 Conn. App. 336, 343, 650 A.2d 924 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995); State v. Correia, 33 Conn. App. 457, 465, 636 A.2d 860, cert. denied, 229 Conn. 911, 642 A.2d 1208 (1994).

       In an attempt to establish that the one person show-up was made unduly suggestive by the actions of the police, defense counsel asked Gerstel the following questions and she answered as follows:
      “Q. Miss Gerstel, did you believe that the person that the police officers had [stopped] in front of was the person who committed this robbery?
      “A. Yes, I did.
      “Q. And did you believe that because the police officers stopped there?
      “A. No.
      “Q. Did you believe that because the police officers had surrounded him?
      “A. No.

        “Q. Why did you believe it?
      “A. Because when somebody sticks a gun in your face, you remember that person.” (Emphasis added.)

       The trial court ruled as follows: “Well ... we have to make the two-pronged test as to whether the identification procedure was unnecessarily suggestive. Insofar as a show-up on the street has been and sometimes classified as suggestive in and of itself, the court cannot deny that that is often the case that it is suggestive. But is it unnecessarily suggestive. I think for all the reasons stated in the reported cases, that the quick identification of a suspect to the determination that someone who is being detained is not the person has been shown to be a valid reason for the on-the-street show-ups. In this particular case in regard to the identification procedure utilized by both the male and female victims in respect to the defendant, considering the reasons for detention, considering the distances, considering the conversations that were had, the requests of the officers, the lack of any suggestiveness on the part of the officers that we have a person in custody for you to look at, allows the court to conclude that this was less than [suggestive] and certainly not unreasonably so if one-on-one on-street confrontation for show-up purposes is deemed to be in and of itself suggestive.
      “On the photographic array, it’s clear that there isn’t any suggestibility demonstrated to the court’s satisfaction which would require the court to look at it for totality of the circumstances to determine it is otherwise reasonably done. For the reasons indicated, the court denies the motion to suppress both respects.”

       General Statutes § 53a-3 (19) provides: “ ‘Firearm’ means any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged.”

       “The first two conditions [of Golding] are determinations of whether a defendant’s claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 231 Conn. 906, 640 A.2d 117 (1994).


author: HENNESSY, J. LAVERY, J.,

text:
    MAC’S CAR CITY, INC. v. PELINO S. DILORETO ET AL.
    (13276)
    Lavery, Hennessy and Freedman, Js.
    Argued January 12
    decision released September 26, 1995

      Paul M. Cramer, with whom, on the brief, was Vincent F. Sabatini, for the appellants (defendants).

      Michael P. Barry, for the appellee (plaintiff).
   HENNESSY, J.

The defendants, Pelino S. DiLoreto and Joanne DiLoreto, appeal from the final judgment of foreclosure of a judgment lien rendered on January 31, 1994. The defendants claim that the trial court improperly found that the judgment lien perfected an interest secured by an attachment filed on June 6, 1980. We agree and reverse the judgment of the trial court.

This appeal arises out of more than fifteen years of litigation commencing with a contract action filed by the plaintiff against Pelino S. DiLoreto on June 6, 1980. At the time the action was filed, the plaintiff obtained an ex parte prejudgment attachment of Pelino S. DiLor-eto’s interest in real property located at 136 Apple Hill, Wethersfield. The property was owned by Pelino S. DiLoreto and his wife, Joanne DiLoreto, at the time of the attachment in 1980. On February 27, 1984, Pelino S. DiLoreto quitclaimed his interest in the property at 136 Apple Hill to his wife, making Joanne DiLoreto the sole owner of the property.

On March 31,1984, following trial, the court rendered judgment in favor of the plaintiff. The plaintiff took no action to preserve the interest secured by the prejudgment attachment. Pelino S. DiLoreto appealed, and, on September 22, 1987, this court reversed the judgment of the trial court on evidentiary grounds and remanded the case for a new trial. Mac’s Car City, Inc. v. DiLoreto, 12 Conn. App. 468, 471-77, 531 A.2d 177 (1987).

On July 16, 1990, following a second trial, judgment was rendered in favor of the plaintiff. Pelino S. DiLoreto timely appealed to this court. On October 2, 1990, the plaintiff, for the first time, filed a certificate of judgment lien on the property at 136 Apple Hill. Thereafter, on May 28, 1991, this court affirmed the judgment of the trial court. Mac’s Car City, Inc. v. DiLoreto, 24 Conn. App. 839, 591 A.2d 831, cert. denied, 220 Conn. 903, 593 A.2d 968 (1991). On August 7, 1991, the plaintiff filed the present action, seeking to foreclose on the judgment lien. The plaintiff filed a motion for summary judgment, which was granted by the trial court on April 8, 1993. The final judgment of foreclosure was rendered by the trial court on January 31, 1994.

This appeal turns on the application of General Statutes § 52-328 (b), which provides: “No real estate that has been attached may be held subject to the attachment to respond to the judgment obtained in the suit, either against the debtor or any other creditor, unless the judgment creditor places a judgment hen on the real estate within four months after a final judgment.” The defendants argue that the trial court’s judgment of March 31, 1984, constituted a final judgment within the terms of § 52-328 (b) and, therefore, that the attachment was dissolved by operation of law when the plaintiff failed to file a judgment hen within four months of that date.

In granting summary judgment for the plaintiff, the trial court found that the prejudgment attachment filed on June 6,1980, survived the September 22,1987 reversal and remand order. The trial court reasoned that this court’s reversal of the trial court’s judgment acted only to restore the parties to the position in which they had been prior to trial without resolving the issues between them. The trial court concluded that this restoration of the status quo precluded a finding that the attachment had been dissolved at any point during the appeal.

The reasoning of the trial court is consistent with the general rule. When “on appeal a [trial court] judgment is set aside, its effect is destroyed, and the parties are in the same condition as before it was rendered. The case remains on the docket of the trial court and when it goes back it is the same case and stands upon the court or jury docket just as it did before the appeal.” W. Maltbie, Connecticut Appellate Procedure (1957) § 345; see Reilly v. State, 119 Conn. 217, 221, 175 A. 582 (1934); Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 413-14, 47 A. 668 (1900).

Prejudgment attachments, however, are outside the scope of this general rule. A plaintiff must perfect a prejudgment attachment by filing a judgment lien within four months of the trial court’s final judgment or the plaintiff loses the benefit of the attachment. City National Bank v. Stoeckel, 103 Conn. 732, 738-39, 132 A. 20 (1926). The pendency of an appeal from the final judgment of the trial court does not stay the time for-filing a judgment lien. Id. Although the Stoeckel court explained that if an appeal results in a reversal of the trial court’s judgment the certificate of judgment lien “would be, of course, nugatory,” it clearly stated that a prevailing plaintiff who desires to have the advantage of his attachment must file a certificate of judgment lien within the statutory period regardless of the pendency of an appeal. Id. The rationale behind this rule, as explained in Stoeckel by Justice Maltbie, is that subsequent parties obtaining an interest in the attached property should be able to rely on the plaintiffs failure to file a judgment lien and to obtain their interest free of the unperfected attachment. Id., 739.

In Stoeckel, our Supreme Court explicitly held that if a judgment lien is not filed within the statutory period following a final judgment of the trial court, that judgment lien cannot be found to perfect a prejudgment attachment. Id., 738-39. Following Stoeckel, we hold in this case that the plaintiffs failure to file a certificate of judgment hen within four months of the trial court’s final judgment of March 31, 1984, precluded the plaintiffs subsequent filing of a judgment lien to perfect the attachment. We note, however, that even though the judgment hen filed on October 2,1990, does not perfect an interest secured by the attachment of June 6, 1980, the judgment hen is not necessarily invalid. The filing of an attachment is not a prerequisite to a valid judgment hen. From the time a certificate of judgment hen is recorded on the land records “the money judgment [is] a hen on the judgment debtor’s interest in the real property described [in the judgment lien].” General Statutes § 52-380a (b). The defendants maintain that at the time of the recording of the certificate of judgment hen, Pelino S. DiLoreto, the judgment debtor, had no interest in the property described in the certificate. Only if that is in fact the case is the judgment hen invalid.

The judgment is reversed as to the determination of the validity of the prior attachment and the case is remanded for a determination of the validity of the judgment lien.

In this opinion FREEDMAN, J., concurred.

LAVERY, J.,

dissenting. I respectfully dissent from the majority opinion. I agree with the trial court that a judgment lien filed after the second trial, which was necessitated by a reversal by this court of the judgment rendered following the first trial, related back to the attachment filed before the first trial. The defendants’ position and that of the majority is that because the plaintiff did not file a judgment lien after the original judgment, which was appealed, the judgment lien filed after the second trial could not relate back to the attachment filed at the commencement of the action. The majority based its decision on City National Bank v. Stoeckel, 103 Conn. 732, 738-39, 132 A. 20 (1926). The Supreme Court has held with two exceptions, Mulholland v. Mulholland, 229 Conn. 643, 643 A.2d 246 (1994), and Cologne v. Westfarms Associates, 197 Conn. 141, 496 A.2d 476 (1985), both involving public policy and the contempt power of the trial court, that the reversal of a trial court’s judgment by an appellate tribunal renders that court’s judgment void and without effect. Reilly v. State, 119 Conn. 217, 220-21, 175 A. 582 (1934); Brennan v. Berlin Iron Bridge Co., 73 Conn. 412, 415-16, 47 A. 668 (1900); Woodruff v. Bacon, 35 Conn. 97, 102 (1868); Allen v. Adams, 17 Conn. 67, 73 (1845). In Allen the Supreme Court stated: “Now, it is very clear, that, when that judgment was reversed, it ceased to be a judgment of any description, because the effect of such reversal was wholly to vacate and annul it. This is plain from the nature of the proceeding and the form of the entry of a judgment of reversal. Legally speaking, therefore, the judgment so reversed has now no existence. In legal contemplation, it is annihilated, and it is as if it had never been rendered.” Allen v. Adams, supra, 73.

The majority holds in a footnote that, “[a]s the effect of Stoeckel is to contradict the holding oí Allen in application to prejudgment attachments, we find that Allen is no longer controlling in cases involving attachments, although it continues to enunciate the general rule for other situations.” City National Bank v. Stoeckel, supra, 103 Conn. 732, did not overrule Allen v. Adams, supra, 17 Conn. 67. In Stoeckel, the Supreme Court stated: “The prevailing plaintiff, who desires to have the advantage of his attachment, to be safe, need only file his certificate within four months of the rendition of the judgment in the trial court; if an appeal is taken and the case reversed, that certificate would be, of course, nugatory, as pointed out in Allen v. Adams, [supra, 74]; but should he prevail again in the trial, he has to but file a new certificate . . . .” (Emphasis added.) City National Bank v. Stoeckel, supra, 739. There is a distinct factual difference between Stoeckel, on the one hand, and Allen and the present case, on the other. In Stoeckel, the plaintiff was successful on appeal and the judgment was affirmed. In the present case and in Allen, the first judgment for the plaintiff was reversed and the case remanded for a new trial. If a judgment lien had been filed after the first trial, it would have been “nugatory.” It is my position that Stoeckel did not overrule Allen but is distinguishable from it. Allen had a factual situation analogous to that in this case. Allen involved an attachment of personal property in which the judgment for the plaintiff on the first trial was reversed. When no lien on the property was filed within sixty days of the first judgment and when asked to determine whether the lien created by the statute should be discharged, the Supreme Court stated: “The reasons are obvious why bail or property should be exonerated by a judgment in favour of the defendant, although it may after-wards be set aside; but it is difficult to perceive why a plaintiff should be held to have lost the security acquired by his attachment in a suit, merely by having a judgment rendered in his favour and subsequently reversed, when the action may be re-tried, and on such retrial, he may succeed in obtaining another judgment which shall be valid. The legal and proper effect of the reversal of the judgment being to extinguish and annul it, and thus wholly to deprive it of any force or effect, it certainly should require some very cogent reasons to show, that it was the judgment intended by the statute relied on; especially, as such a construction of it would strip the plaintiff in that suit, without any default on his part, and even after judgment rendered in his favour, of the security obtained by his attachment in the suit. No such reasons have been advanced. That judgment was not an effective one, because it was not available at all to the plaintiff. It was not only voidable, but actually avoided. To hold that a judgment for the plaintiff, which could not be made effectual for the purpose of appropriating the property attached for his benefit, shall be treated as the final judgment contemplated by that statute, would be a palpable perversion of its object and meaning.” Allen v. Adams, supra, 77. I agree with the reasoning in the Allen case and would apply it to the case here.

Practice Book § 4009 provides twenty days in which to file an appeal after the rendition of judgment. Practice Book § 4046 provides in pertinent part: “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced . . . .”

It may be argued that a proceeding contemplated by § 4046 is the foreclosure of the judgment lien, not the filing of the judgment lien. Common sense and simplicity of procedure, however, should prevail and the time for filing of a judgment lien after a judgment is rendered should be part of what is stayed under Practice Book § 4046.

I would sustain the judgment of the trial court and find that once a judgment of money damages is reversed on appeal and a new judgment is rendered and sustained on appeal, the plaintiff has four months from the sustaining of the second judgment on appeal to file a judgment hen pursuant to General Statutes § 52-328 (b), and that such a judgment lien would relate back to the attachment filed at the commencement of the action.

I respectfully dissent.

       This action to foreclose on a judgment lien was initially brought against Pelino S. DiLoreto, Joanne DiLoreto, and a number of other parties having interests in the property that was subject to the lien. This appeal is brought solely by the DiLoretos. We will refer to them in this opinion as the defendants.

       On April 21,1993, the defendants appealed from the trial court’s granting of summary judgment. The appeal was dismissed as premature. Mac’s Car City, Inc. v. DiLoreto, 33 Conn. App. 131, 634 A.2d 1187 (1993).

        Stoeckel turned on the application of General Statutes (1918 Rev.) § 5233, a precursor to General Statutes § 52-380a (b), which provides in relevant part: “If, within four months of judgment, the lien is placed on real property which was previously attached in the action, the lien on that property shall hold from the date of attachment . . . .” Our application of Stoeckel to the interpretation of § 52-328 (b), which controls the duration of attachment liens after judgment, reflects the fact that § 52-328 (b) and § 52-380a (b) operate together to provide a four month period after judgment in which to perfect a prejudgment attachment of real property and that after the four month period an unperfected attachment is dissolved, thereby allowing new parties to obtain interests in the property free of the unperfected attachment.

       In Alien v. Adams, 17 Conn. 67, 76-77 (1845), a case factually similar to the case at hand, our Supreme Court applied the general rule that a reversal by an appellate court restores the parties to the position that they were in prior to the final judgment of the trial court, and held that a prejudgment attachment survived the appeal. As the effect of Stoeckel is to contradict the holding of Allen in application to prejudgment attachments, we find that Allen is no longer controlling in cases involving attachments, although it continues to enunciate the general rule for other situations. See, e.g., Osterlund v. State, 135 Conn. 498, 501, 66 A.2d 383 (1949); Reilly v. State, supra, 119 Conn. 221; Brennan v. Berlin Iron Bridge Co., supra, 73 Conn. 413-14.

       General Statutes § 52-328 (b) provides: “No real estate that has been attached may be held subject to the attachment to respond to the judgment obtained in the suit, either against the debtor or any other creditor, unless the judgment creditor places a judgment lien on the real estate within four months after a final judgment.”