author: Bieluch, J.

text:
    Herbert Janow v. Town of Ansonia
    (4506)
    Hull, Daly and Bieluch, Js.
    Argued December 9, 1986
    decision released May 19, 1987

      Foster M. Young, for the appellant (defendant).

      Constance L. Epstein, for the appellee (plaintiff).
   Bieluch, J.

The plaintiff brought this action to recover damages from the defendant for injuries, medical expenses and loss of earnings resulting from a fall on a broken curbstone between the public sidewalk and the street pavement on West Main Street in Ansonia. The incident occurred on May 8,1980, as the plaintiff was reloading sample clothing bags in the trunk of his car after making a sales call to a nearby business. The complaint alleged a breach of the defendant’s statutory duty under General Statutes § lSa-149.

The action was heard by an attorney state trial referee appointed pursuant to General Statutes § 52-434 (a) (4), who found the issues for the plaintiff. Upon acceptance of the referee’s report after overruling the defendant’s objection, the court rendered judgment for the plaintiff. On appeal from that judgment, the defendant claims that the trial referee erred (1) in placing upon the defendant the burden of proving that the plaintiff was guilty of contributory negligence, and (2) in his conclusions of fact. We find no error.

In order to recover under his complaint for breach of statutory duty, the plaintiff must prove, by a preponderance of the evidence (1) that the highway was defective in the manner claimed, (2) that the defendant actually knew of the particular defect or that, in the exercise of its supervision of highways in the municipality, it should have known of that defect, (3) that the defendant, having actual or constructive knowledge of this defect, failed to remedy it, having had a reasonable time, under all the circumstances, to do so, and (4) that the defect must have been the sole proximate cause of the injuries claimed, which means that the plaintiff must prove freedom from contributory negligence. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981).

Our concern on review in this appeal is the fourth element of the plaintiffs case, namely, that the defective curbstone was the sole proximate cause of his fall. As a necessary corollary of that requirement, he must show that he was not contributorily negligent. The rule making freedom from contributory negligence a condition precedent to a right of action under the defective highway statute was first established in our jurisdiction in Bartram v. Sharon, 71 Conn. 686, 43 A. 143 (1899). The court there held that a cause of action under the law that is now General Statutes § 13a-149 for injuries caused by a defective road or bridge “is not an action of negligence, but an action on the statute to enforce a penalty; and the liability created depends on the commission of the very act for which the penalty is imposed.” Id., 692. Since the defective highway statute is penal, as well as remedial, in nature, it is to be construed strictly. Under such a construction, in order for the plaintiff to recover, he must have sustained damage while using the defective road “with due care and skill.” Id., 695. “All these conditions must concur before the town is liable for any penalty. It follows that an injury caused by the culpable negligence of a traveler, whether to himself or to another, does not happen by means of or through a defect in the highway, even if such defect were a concurring cause.” Id.

Because of the statutory basis for an action under § 13a-149, the provision in General Statutes § 52-114, providing that in any action to recover damages for negligently causing injury or death, it shall be presumed that the plaintiff was in the exercise of due care at the time of the commission of the alleged negligent act, does not apply to actions brought against a municipality under the defective highway statute. Jacen v. East Hartford, 133 Conn. 243, 246, 50 A.2d 61 (1946); Porpora v. New Haven, 119 Conn. 476, 479, 177 A. 531 (1935).

In accordance with this legal requirement, the plaintiff alleged in his complaint that the fall occurred while he was in the exercise of due care. The defendant denied this allegation, but also alleged as an affirmative special defense that the plaintiffs injuries and losses “were directly and proximately caused by his own negligence” in specified ways. This allegation was denied by the plaintiff in his reply. With the issues framed by the pleadings in this manner, the case was heard by the attorney state trial referee. The only witness who testified was the plaintiff. After his testimony and the introduction of photographic and medical evidence, the plaintiff rested his case. The defendant also rested immediately thereafter without offering any evidence.

The following facts were found by the trial referee in his report: On May 8,1980, at about 4 p.m., the plaintiff fell on the easterly side of West Main Street in Ansonia when he stepped on a broken curbstone with his right foot. As a result of this fall, he received a fracture of the right foot which resulted in a permanent disability of 5 percent. He had completed a sales call and was in the process of reloading his automobile with several large sample garment bags at the time of the occurrence. His car was then parked in a metered space alongside the sidewalk and curbing. Immediately upon his injury, the plaintiff viewed the curbstone and noticed that the broken area of the curb was discolored and contained debris, as if it had been in existence for some period of time. Photographs of the site showed evidence of fresh cement adjacent to the area of the damaged curbstone. The broken curbstone constituted a defect, of which the defendant should have known, and which it failed to remedy within a reasonable time. The area was commercial in nature. The town should have expected that pedestrians would traverse the area carrying packages or bundles which from time to time would obstruct their view of the surface of the sidewalk immediately adjacent to their feet. Based on the subordinate facts, the trial referee concluded that the broken curbstone was the sole proximate cause of the plaintiffs injuries and damages. Finding damages in the amount of $4750 as a result of the plaintiffs injuries, the trial referee recommended judgment for the plaintiff in that amount.

Supplementing his report, the trial referee filed a memorandum of decision in which he reviewed the pleadings and the facts found from the evidence. In addition, he recited the relevant law with authorities, and related the facts pertinent to the law and supportive of his conclusion that the defendant had not met the burden of proof which it had assumed by alleging the plaintiffs contributory negligence as a special defense.

The defendant objected to the acceptance of the referee’s report on the grounds that the conclusions of fact made therein were not properly reached on the basis of the subordinate facts found and “that the conclusion that the plaintiff did not have to prove he was free of negligence [was] an erroneous conclusion of law.” After overruling the objection, the court rendered judgment in accordance with the referee’s report and recommendation.

The defendant’s first and principal claim is that the “State Trial Referee erred when he placed the burden of proof re contributory negligence on the defendant.” The main thrust of the defendant’s argument is that since the plaintiff by pleading due care expressly waived the presumption of reasonable or due care under General Statutes § 52-114, “he should not later benefit when the defendant files a special defense claiming contributory negligence.” In support of his claim that the burden of proof rested with the plaintiff to prove his freedom from contributory negligence, the defendant cites Lukas v. New Haven, supra, 207, and Foster v. Waterford, 186 Conn. 692, 694, 443 A.2d 490 (1982). These cases are inappropriate to the facts before us. In Lukas, the defendant simply denied the plaintiff’s allegation that he was in the exercise of due care. There was no affirmative defense of contributory negligence pleaded by the defendant. In Foster, the defendant alleged, as a special defense, that the plaintiff’s contributory negligence was “more than slight” when compared with any negligence of the defendant. Comparative negligence under General Statutes § 52-572h does not apply to actions for personal injuries brought under General Statutes § 13a-149. Foster v. Waterford, supra, 694 n.3; Lukas v. New Haven, supra, 212.

The requirement of the exercise of due care by the plaintiff for recovery under the statute for a defective highway has superimposed over it the defendant’s voluntary allegation of contributory negligence, when a simple denial of the plaintiff’s necessary due care was sufficient to defend the action on a claim of the plaintiff’s negligence. The court was justified in following the pleadings and in assigning to each party the burden of proving the facts affirmatively asserted to be true. A defendant who voluntarily alleges a fact which could also be proven under a simple denial presumably does so with the idea of making his defense appear to be stronger and more aggressive, and invites the court to conclude that he has assumed the affirmative upon that particular issue. He is, therefore, estopped by his own pleading from complaining if the court assigns such burden of proof to him. The plaintiff, however, is still bound to prove the essential allegations of his complaint. Rix v. Stone, 115 Conn. 658, 664, 163 A. 258 (1932); Krawitz v. Ganzke, 114 Conn. 662, 664, 159 A. 897 (1932); Coogan v. Lynch, 88 Conn. 114, 116, 89 A. 906 (1914). See Southland Corporation v. Vernon, 1 Conn. App. 439, 443, 473 A.2d 318 (1984) (“[ordinarily, the allegation of facts allocates the burden of proof to the party pleading them”).

In his report to the court, the trial referee specifically found that “[t]he broken curbstone was the sole proximate cause of the plaintiff’s injuries and damages.” Such a distinct finding means that the plaintiff has proven his “freedom from contributory negligence.” Lukas v. New Haven, supra, 207. A finding concerning this element of the plaintiff’s case was the requirement of the trial referee. In his voluntary non-authoritative supplementary memorandum of decision, however, the referee stated that “[t]he defendant having specially pled contributory negligence as a defense shifted the burden of proof to itself,” citing Krawitz v. Ganzke, supra. (Emphasis added.) It is upon this incomplete statement of law that the defendant predicates his claim that “the State Trial Referee erred when he placed the burden of proof re contributory negligence on the defendant.” Krawitz merely holds that a defendant who voluntarily alleges a fact unnecessary to his defense invites the court to infer “that he has assumed the affirmative upon that particular issue.” Id. “[T]he plaintiff [is] still bound to prove the essential allegations of [his] complaint . . . .” Coogan v. Lynch, supra, 116-17.

“It is important to note the distinction between the two senses in which the term ‘burden of proof is ordinarily used. It is a general term which refers to two separate and different burdens: (1) the risk of not persuading the trier of fact, or the burden of persuasion; and (2) the risk of not producing evidence, or the burden of going forward. McCormick, Evidence, pp. 635, 638; 9 Wigmore, Evidence (3d Ed.) §§ 2485, 2487.” State v. Brown, 163 Conn. 52, 65 n.5, 301 A.2d 547 (1972).

The first burden described above—the risk of non-persuasion by the plaintiff that he was in the exercise of due care in order to recover—never shifts, since no fixed rule of law can be said to shift. The second kind of burden, however—the duty assumed by the defendant in his special defense of producing evidence that the plaintiff was contributorily negligent and, therefore, not entitled to recover—does have the characteristic referred to as a “shifting.” 9 J. Wigmore, Evidence (3d Ed. Chadbourn) § 2489. Such a “shifting” or assumption of the burden of proving contributory negligence does not remove, offset, cancel or lessen the burden of the plaintiff to prove that he exercised due care and that the defective highway was the sole proximate cause of his injuries and damages in order to recover under § 13a-149. We find the defendant’s first claim, therefore, to be without merit.

The defendant’s second claim of error is that the trial referee erred in his conclusions of fact based upon the evidence, not Only because he misinterpreted that evidence, but also because he applied the wrong burden of proof to that evidence. This claim is based solely upon the finding of the trial referee in the recital of facts in his supplemental memorandum of decision that “[t]he plaintiff, Herbert Janow had passed and repassed over or in the area of the damaged curbstone several times while unloading his automobile.” The defendant’s entire argument on this claim is as follows: “Here the plaintiff was the only witness and he specifically testified that he passed over the subject defect when his vision was unobstructed and repassed over this same area when his vision was obstructed by himself. . . . It is obvious that the Trial Referee incorrectly found, based upon this testimony, that the defect was the sole proximate cause of the plaintiffs injury. Further, the Trial Referee applied the wrong burden of proof to the facts he did find in reaching his conclusions.” (Emphasis added.)

The obviousness of the defendant’s conclusion of error is not perceived by this court. This claim is based on an isolated subordinate finding taken out of context and is without merit. The only witness who testified was the plaintiff. He stated that he had completed a sales call to a customer and was in the process of returning his sample bags to the trunk of his car when he fell. He had placed the first bag of samples in the car and was returning to the store for another bag when he stepped on the defective curb and twisted his leg because his right foot was trapped in the defect. As a result, he fell to the pavement and suffered his injuries. He was wearing broken-in, low-heel shoes, and he was not carrying anything at the time. The rear of his parked car was close to the defective curb. Photographs in evidence depicted the defective curbing. They showed that the broken area was discolored and that it contained debris. There was evidence of fresh cement adjacent to the area of the damaged curbstone.

The finding that “[t]he broken curbstone was the sole proximate cause of the plaintiffs injuries and damages” is supported by the evidence and is not erroneous. We find no merit in the defendant’s challenge to the findings of the referee or to the judgment in accordance therewith.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 13a-149 provides in relevant part: “damages for INJURIES BY MEANS OF DEFECTIVE ROADS AND BRIDGES. Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. . . .”

       General Statutes § 52-434 (a) (4) provides in relevant part: “state referees. (a) APPOINTMENT OF RETIRED JUDGES AND MEMBERS OF THE BAR. CASES referred. ... (4) In addition to the state referees who are appointed pursuant to subdivision (1), (2) or (3) of this section, the chief justice may appoint, from qualified members of the bar of the state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more than one year. ...”

       In the trial referee’s report filed with the court, he set forth the facts found and a recommendation that judgment enter for the plaintiff to recover damages in the amount of $4750.

       General Statutes § 52-114, originally enacted in 1939; Public Acts 1939, No. 125; provides as follows: “pleading of contributory negligence. In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be presumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.”

       “Having no power to render a judgment, an attorney referee is simply a factfinder whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445. The rules of practice governing procedure in matters referred to committees are also applicable to ‘state referees.’ Practice Book § 428. A committee is obliged to report to the court ‘the facts found and the conclusions drawn therefrom,’ but the report may be supplemented with a ‘memorandum of decision including such matters as [the committee] may deem helpful in the decision of the case . ’ Practice Book § 434. The attorney referee who heard this case filed such a report and memorandum of decision. A party may seek additions or corrections in the facts contained in the committee’s report by filing a motion for that purpose. Practice Book § 438. The reviewing court must correct the finding where material facts have been found without evidence or in ambiguous language and also where undisputed facts have been omitted. Practice Book § 439. Before judgment is rendered upon the report, an opportunity for a hearing before the court is provided for the purpose of considering any objections or exceptions to the report. Practice Book § 442. The function of the court is ordinarily to ‘render such judgment as the law requires upon the facts in the report as it may be corrected.’ Practice Book § 443.” (Footnote omitted.) Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 502-503, 508 A.2d 415 (1986).

       “Although General Statutes § 52-425, authorizing the appointment of committees ‘to hear the evidence and report the facts to the court,’ makes no reference to any additional duties, our rules of practice allow a committee to express his views upon questions of law. ‘The committee may accompany his report with a memorandum of decision including such matters as he may deem helpful in the decision of the ease . ...' Practice Book § 434. The fact that the attorney referee went beyond the bare statutory requirement of reporting the facts found by including his opinion upon the legal issues involved in the case did not transform his role into a judicial one. The views of a committee upon the law carry no more force than those of the parties in their arguments at the hearing before the court that is to enter judgment. See Lyon v. Wilcox, 98 Conn. 393, 396, 119 A. 361 (1923); Stehlin-Miller-Henes Co. v. Bridgeport, 97 Conn. 657, 665, 117 A. 811 (1922). ‘The court shall render such judgment as the law requires upon the facts in the report as it may be corrected.’ Practice Book § 443. The reviewing court is the effective arbiter of the law and the legal opinions of a committee, like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 509-10, 508 A.2d 415 (1986).

       See footnote 6, supra.

       See footnote 6, supra.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Robert Lizotte
    (4568)
    Dupont, C. J., Hull and Bieluch, Js.
    Argued December 11, 1986
    decision released May 19, 1987

      Kimball Haines Hunt, with whom was John Serrano, law student intern, for the appellant (defendant).

      Alex Andrew Knopp, special assistant state’s attorney, with whom, on the brief, were James G. Clark and Herbert Appleton, assistant state’s attorneys, for the appellee (state).
   Bieluch, J.

The defendant appeals from a judgment of conviction rendered pursuant to a plea of nolo contendere on the charge of possession of narcotics, a violation of General Statutes § 21a-279 (a). His plea of nolo contendere was conditional upon his right to appeal the trial court’s denial of the defendant’s motion to suppress certain evidence seized from his van without a warrant. See General Statutes § 54-94a. He claims that the trial court erred (1) in finding that the police officers had probable cause to stop the defendant’s motor vehicle, (2) in finding that the police officers’ warrant-less arrest of the defendant and subsequent warrant-less search of the van were lawful, (3) in finding that the police officers’ actions were justified as an investigative stop under Terry v. Ohio, 392 U.S. 1, 24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and State v. Acklin, 171 Conn. 105, 112, 368 A.2d 212 (1976), and (4) in denying the defendant’s motion to dismiss the information. We find no error.

The following facts as found by the trial court in its memorandum of decision on the defendant’s motion to suppress the evidence seized from his van and on his motion to dismiss are not in dispute. On the night of February 23,1984, Officers Gaten Landry and Bruce Tischofer, of the Hartford police department, were en route to their patrol assignment traveling westbound on Interstate 84 in Hartford. As they approached the Sisson Avenue exit, they noticed a green van in the center of the highway. This van then crossed two lanes of traffic, cut in front of their cruiser and entered the Sisson Avenue exit ramp without giving a right turn signal. The police officers decided to stop the driver of the van for the purpose of issuing a traffic summons charging an improper lane change in violation of General Statutes § 14-236. The police activated the flashing lights and siren of their cruiser and followed the van to a stop. At that time, the officers also noticed that one of the tail lights on the van was not operating, a violation of General Statutes § 14-96c.

Landry approached the driver side of the van to question the driver and Tischofer went to the passenger side. The defendant was the sole occupant of the van. Landry requested the defendant’s license, registration and insurance card. At the same time, Tischofer scanned the inside of the passenger compartment with his flashlight as part of a routine search for weapons to ensure the police officers’ safety. During this procedure, Tischofer saw a leather ammunition belt containing ammunition on the floor of the van just to the right rear of the operator’s seat. The belt was partially covered by a towel. Tischofer immediately alerted his partner to the presence of the ammunition belt. The defendant was then ordered out of the van and was searched by a patdown for weapons. This search revealed no weapon. The defendant was then handcuffed and placed in the police cruiser. Although the defendant was not charged with a criminal offense at that point, the officers determined that such restraint was necessary to protect their safety, which they felt was jeopardized by the existence of the gun belt and their belief that there may have been a weapon in the van.

Tischofer returned to the van and removed the towel which partially covered the ammunition belt. The belt contained thirteen live rounds of .357 caliber ammuni- / tion. A holster was found attached to the belt and it contained a .357 caliber Ruger Black Hawk pistol fully loaded with six live rounds of ammunition. The belt, ammunition and pistol were seized and placed in the police cruiser.

The officers again returned to the van and conducted a search of the passenger compartment. On the right side, underneath the seat cover, three brown packets of white powder and one clear packet of white powder were discovered. On the basis of their training and experience, the officers concluded that the four packets contained either cocaine or heroin. These packets were also seized and later identified as containing cocaine.

As a result of the discovery of the weapon, ammunition and drugs described, the defendant was arrested and charged with the following crimes: carrying a weapon in a motor vehicle, a violation of General Statutes § 29-38; criminal possession of a pistol or revolver, a violation of General Statutes § 53a-217; possession of narcotics, a violation of General Statutes § 21a-279 (a); and possession of narcotics with intent to sell, a violation of General Statutes § 21a-277 (a).

Prior to trial, the defendant moved to suppress the items seized from his van without a warrant at the time of his stop. See Practice Book § 821. He also filed a motion to dismiss the charges against him. See Practice Book §§ 728 and 815. The court denied these motions. Thereafter, the defendant entered a conditional plea of nolo contendere only to the third count of possession of narcotics, a violation of General Statutes § 21a-279 (a). The disposition of the other three charges in the original information is not before us in this appeal.

The defendant’s first claim is that the police had no probable cause to stop the defendant’s motor vehicle. The parties are in agreement that the basis for the police officers’ stop of the defendant’s vehicle was to issue a traffic summons for an unsafe lane change under General Statutes § 14-236. General Statutes § 14-236 provides in relevant part that, “[w]hen any highway has been divided into two or more clearly marked lanes for traffic, (1) a vehicle shall be driven as nearly as practicable entirely within a single, lane and shall not be moved from such lane until the driver has ascertained that such movement can be made with safety . . . .”

The police officers testified that they first encountered the defendant’s van traveling in the center of Interstate 84, when it subsequently crossed two lanes of the highway and cut in front of their cruiser and entered the Sisson Avenue exit ramp without giving a right turn signal. The officers characterized these movements as “rather hazardous.” The defendant claims that such statements were inadequate to establish a violation of General Statutes § 14-236, in light of Tischofer’s testimony on cross-examination that the vehicle was approximately ten car lengths ahead of the police cruiser at the point the officers observed the defendant’s van and that Tischofer could not recall if there were any cars between the police cruiser and the van.

Whether the police , were justified in stopping the defendant’s van for a motor vehicle infraction is, of course, an issue of fact.. See, e.g., State v. Brindley, 25 Conn. Sup. 216, 220, 200 A.2d 247 (1963). From the record it is clear that the trial court was convinced, notwithstanding Tischofer’s testimony on cross-examination, that there was a reasonable belief on the part of the police officers that the defendant’s operation of the van constituted a violation of General Statutes § 14-236. In challenging this finding, the defendant bears the burden of proving that the court’s conclusion is clearly erroneous, which is to say that it is unsupported by the facts. See Practice Book § 4061 (formerly § 3060D); State v. Stepney, 191 Conn. 233, 239, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984). The officers’ testimony that the van crossed two lanes of traffic without signaling, that there were other cars on the road, that the van cut in front of the police cruiser, and the characterization of the maneuver as hazardous provided sufficient evidence to support the trial court’s conclusion that the officers were justified in stopping the defendant’s van to issue a summons for a moving violation.

The defendant’s second claim of error asserts that if the police were justified in stopping the defendant’s van for a traffic infraction, the ensuing warrantless arrest of the defendant was invalid and the subsequent warrantless search could not be upheld as lawfully incident to an arrest. We note at the outset that a search conducted without a warrant issued upon probable cause is per se unreasonable, subject only to a few specifically established and well delineated exceptions. State v. Badgett, 200 Conn. 412, 423, 512 A.2d 175 (1986), cert. denied, 479 U.S. 940, 107 S. Ct. 423, 193 L. Ed. 2d 373 (1987). It is the state’s burden at trial to establish the exception. Id., 424. A review of the memorandum of decision demonstrates that the trial court found that the warrantless search of the defendant’s van was justified as incident to a lawful arrest. See New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).

If evidence obtained without a warrant was obtained as a result of a valid search and seizure incident to a lawful arrest, such evidence was not illegally obtained and is admissible. See Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); State v. Badgett, supra; State v. Cobuzzi, 161 Conn. 371, 377-79, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). “[A] lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediate surrounding area, whether or not there is probable cause to search. . . . [Sjearches incident to arrests have long been considered valid because of the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape . . . ’ and the need to prevent the concealment or destruction of evidence.” State v. Badgett, supra, 425. In our analysis of the constitutional validity of the search, we note that the defendant was placed under arrest when he was handcuffed and detained in the police cruiser. See State v. Magnotti, 198 Conn. 209, 213, 502 A.2d 404 (1985); 2 W. LaFave, Search and Seizure (2d Ed.) § 5.1 (a).

The defendant first argues that the officers’ observation in plain view of a portion of the gun belt was insufficient to establish probable cause for his arrest on the weapons in a motor vehicle charge. Without probable cause to make a warrantless arrest, he argues, the officers’ ensuing warrantless search which uncovered the narcotics was invalid. It is axiomatic that “[a] search cannot be sustained as incident to an arrest unless the arrest itself was valid.” State v. Cobuzzi, supra, 375. It is fundamental that a valid arrest may only be made upon probable cause. See 2 W. LaFave, supra, § 5.1 (b). The defendant argues that prior to the search of the van and the discovery of the narcotics, there was no probable cause to arrest him.

“Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.” State v. Cobuzzi, supra, 376. “In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict.” Id.

The trial court found that prior to the search of the van, Tischofer observed a gun belt and ammunition which the court characterized as “highly indicative of the presence of a firearm.” The court deemed as “common knowledge that pistols are carried in holsters attached to belts such as the one observed.” We agree that the officers’ observation of the defendant’s sole occupancy of a motor vehicle in which one of them saw a gun belt with ammunition constituted sufficient facts or circumstances to support a reasonable belief that the defendant was also carrying a weapon in the vehicle in violation of General Statutes § 29-38, an unclassified felony. See General Statutes § 53a-25 (a), (c). We also note that the observation of the gun belt and ammunition did not constitute a search of the defendant’s vehicle, as they were in plain view of Tischofer. See State v. Cobuzzi, supra, 377; see also State v. Federici, 179 Conn. 46, 56 n.6, 425 A.2d 916 (1979) (the use of a flashlight does not affect propriety of the view).

In determining whether the police officers had probable cause to arrest the defendant for carrying a weapon in a motor vehicle, we also note that probable cause may exist even without ascertaining whether the defendant had a permit to carry the weapon discovered. See Adams v. Williams, 407 U.S. 143, 148-49, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). In Adams, a Bridgeport police officer, acting upon information received moments earlier, approached a vehicle and asked the occupant to open the door. The occupant rolled down the window instead, whereupon the officer reached into the car and removed a fully loaded revolver from Williams’ waistband. The gun had not been visible to the officer from outside the car, but it was in precisely the place indicated by the informant. The occupant was immediately arrested for unlawful possession of a weapon in a vehicle in violation of General Statutes § 29-38. The officer then conducted a search incident to that arrest, whereupon substantial quantities of heroin were found on the defendant’s person and in his car. Adams v. Williams, supra, 145.

In upholding the subsequent search of the defendant as incident to a lawful arrest, the United States Supreme Court reasoned that “[pjrobable cause does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction. See Draper v. United States, 358 U.S. 307, 311-312 [79 S. Ct. 329, 3 L. Ed. 2d 327] (1959). Rather, the court will evaluate generally the circumstances at the time of the arrest to decide if the officer had probable cause for his action: Tn dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ Brinegar v. United States, 338 U.S. 160, 175 [69 S. Ct. 1302, 93 L. Ed. 1879] (1949).” (Emphasis added.) Adams v. Williams, supra, 149. On the basis of the foregoing, we conclude that at the time the defendant was ordered out of the van, the police had probable cause to believe that he was carrying a weapon in a motor vehicle in violation of General Statutes § 29-38.

We also note that the warrantless arrest of the defendant was legally permissible pursuant to General Statutes § 54-lf (b). That section authorizes a police officer to arrest, “without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.” See also General Statutes § 54-lf (a) (arrest by a peace officer without a warrant when the person is taken or apprehended in the act). We conclude, therefore, that the officers had reasonable grounds to believe that the defendant had committed a felony. See State v. Dennis, 189 Conn. 429, 431, 456 A.2d 333 (1983) (reasonable grounds to believe is equivalent to probable cause); 2 W. LaFave, supra, § 5.1 (b). The warrantless arrest, therefore, was legal and valid.

The defendant also claims that if the police officers had probable cause to arrest him, the subsequent search under the seat cover which yielded the four packets of cocaine exceeded the permissible scope of the search incident to a lawful arrest. The defendant’s argument relies upon the reason supporting the validity of a search incident to a lawful arrest, namely: “ ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape . . . ’ and the need to prevent the concealment or destruction of evidence.” State v. Badgett, supra, 425, quoting Chimel v. California, supra. The defendant argues that before the time of the search the defendant had been handcuffed and placed in the police cruiser. Under such circumstances, it is argued, the defendant could not have reasonably used any weapon in the van to resist arrest or to effectuate an escape. Whether the restraining of an arrestee by handcuffing and placing him in a police cruiser precludes the police officers from conducting a subsequent search, as incident to a lawful arrest, of the arrestee’s vehicle was recently addressed by our Supreme Court in State v. Badgett, supra.

In Badgett, the court held that a warrantless search of the contents of a small black zippered bag found in a windbreaker underneath the seat in the defendant’s automobile conducted by a state trooper as the defendant was being driven to the police station by a second officer was beyond the proper scope of a warrantless search incident to a lawful arrest because “the defendant [was] no longer at the scene of the arrest when the warrantless search was undertaken.” Id., 427. In so concluding, the court relied upon New York v. Belton, supra, 461, which holds that “a lawful custodial arrest justifies a contemporaneous search of the entire passenger compartment of an automobile, whether or not the arrestee actually had control over the area.” State v. Badgett, supra, 425. The court recognized that Belton “fashioned a rule, ‘easily applied, and predictably enforced’ ... in order to provide clear guidance to police officers ‘who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ . . . Belton established this standard based upon a generalization that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” State v. Badgett, supra, 426. Consistent with Belton, our Supreme Court observed in Badgett that “we ordinarily will refuse to evaluate whether or not an individual arrested while in an automobile actually had access to the passenger compartment at the time of the search.” Id., 427. In so stating, the court cited several “analogous situations where the arrestee seemingly had no opportunity to gain access to the passenger compartment of the automobile. United States v. Cotton, 751 F.2d 1146 (10th Cir. 1985) (Belton applicable even though defendant outside car and handcuffed); Traylor v. State, 458 A.2d 1170 (Del. 1983) (defendant in handcuffs); State v. Valdes, 423 So. 2d 944 (Fla. App. 1982) (defendant seated in police car); State v. Hopkins, 163 Ga. App. 141, 293 S.E.2d 529 (1982) (defendant seated in police car); see 2 LaFave, Search and Seizure, Search Incident to Arrest, 1986 Pocket Part § 7.1, p. 224 n.46.12.” State v. Badgett, supra.

On the basis of the reasoning of New York v. Belton, supra, as adopted and applied in State v. Badgett, supra, we conclude that the search of the defendant’s van was proper as incident to the lawful arrest of the defendant and did not violate his state or federal constitutional guaranties of freedom from unreasonable searches and seizure. See U.S. Const., amends. IV, XIV; Conn. Const., art. I, § 7. The defendant’s argument that the search under the seat cover was beyond the permissible scope of a search for weapons is unpersuasive. Under the circumstances existing, it was reasonable for the police officers to believe that other weapons or additional ammunition may have been hidden under the seat cover.

The defendant’s third claim of error is that the trial court erred in finding that the police officers’ investigative stop of the defendant was warranted under Terry v. Ohio, supra, and State v. Acklin, supra. The defendant argues that the police had no reasonably articulable justification for stopping him to conduct an investigatory search. We disagree that the officers’ stop of the defendant’s van and his subsequent restraint by handcuffs and placement in the police cruiser were improper. As we have already discussed, the police were justified in stopping the defendant’s van for the purpose of issuing a traffic summons. The officers’ conduct in ordering the defendant out of the van and restraining him was justifiably based upon probable cause that he was illegally carrying a weapon in a motor vehicle. The officers’ actions were based upon probable cause, and not merely on a hunch, suspicion or guesswork. See State v. Januszewski, 182 Conn. 142, 149, 438 A.2d 679 (1980), cert. denied, 454 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981).

The defendant’s final argument is that since the court erred in denying his motion to suppress the evidence, it consequently also erred in failing to grant the motion to dismiss the charges, because, without the illegal evidence, there was no probable cause to arrest the defendant. Because we find that the evidence was legally seized and, therefore, admissible, there was sufficient evidence to proceed with the charges against the defendant. See Practice Book §§ 728, 815.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 54-94a. conditional nolo contendere plea, appeal OF DENIAL of motion to suppress or dismiss. When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       Practice Book § 821 provides: “Upon motion of the defendant, the judicial authority shall suppress potential testimony or other evidence if he finds that suppression is required under the constitution or laws of the United States or the state of Connecticut.”

       While the disposition of the three remaining counts in the original information is not shown in the record before us, it is clear that the defendant pleaded nolo contendere only to the third count, possession of narcotics; General Statutes § 21a-279 (a); and was sentenced solely on his conviction of that charge.

       The police officers also testified that after they stopped the defendant’s vehicle, they noticed that one of the tail lights was not operating, a violation of General Statutes § 14-96c. This observation was subsequent to the officers’ initial stop of the van and, therefore, cannot be used to justify such initial stop. See State v. Federici, 179 Conn. 46, 58, 425 A.2d 916 (1979) (probable cause must exist before stop).

       “[General Statutes] Sec. 29-38. WEAPONS in vehicles. Any person who knowingly has, in any vehicle owned, operated or occupied by him, any weapon for which a proper permit has not been issued as provided in section 29-28 or section 53-206, or has not registered such weapon as required by section 53-202, as the ease may be, shall be fined not more than one thousand dollars or imprisoned not more than five years or both .... The word ‘weapon,’ as used in this section, means any pistol or revolver

       The defendant argues that the existence of ammunition in a gun belt was insufficient evidence of carrying a weapon in a motor vehicle in violation of General Statutes § 29-38. He posits that the visible “bullets may have pertained to a shotgun or rifle, firearms not included under General Statutes § 29-38.” “In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict.” State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). We find that the observation of the gun belt and live ammunition provided the officers with sufficient evidence to conclude that the weapon for which they were designed was a weapon which required a proper permit to be carried. See Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972).


author: Stoughton, J.

text:
    State of Connecticut v. Frank X. Lo Sacco
    (4680)
    Hull, Daly and Stoughton, Js.

      Argued February 9
    decision released May 19, 1987

      Frank X. Lo Sacco, pro se, the appellant (defendant).

      Michael R. Dannehy, assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, Edward J. Leavitt, assistant state’s attorney, and John Nazzaro, special assistant state’s attorney, for the appellee (state).
   Stoughton, J.

This is an appeal by the defendant from a judgment of conviction after a trial to a jury. The defendant was charged in a two count information. The first count charged the defendant with committing criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1). The second count charged the defendant with disorderly conduct in violation of General Statutes § 53a-182 (a) (2), (3) and (4). The jury found the defendant not guilty on the first count and guilty on the second count.

The defendant has appeared pro se throughout these proceedings. He raises six issues in his appeal, claiming that the trial court erred (1) by denying a motion for separate trials for two offenses of different character, (2) by failing to instruct the jury as to all of the essential elements of the disorderly conduct statute, (3) by failing to instruct the jury that, in order to find him guilty of disorderly conduct, their verdict must be unanimous as to at least one of the three statutory alternatives in the information, inasmuch as he had requested a jury poll, (4) by submitting to the jury a charge on the offense of disorderly conduct because the evidence was insufficient to establish guilt beyond a reasonable doubt, (5) by submitting to the jury a charge on subsection (2) of the disorderly conduct statute because his speech was constitutionally protected, and (6) by its charge on intent because it relieved the state of its burden of proving this statutory element. We find no error.

The jury could reasonably have found the following facts: On June 11,1985, Debra Young was teaching an adult education class in a classroom in Middletown which was in a building partially leased by the board of education. Young and the defendant are the parents of a six year old boy but were living apart. At about 10 a.m., the defendant appeared in the doorway of the classroom and yelled at Young, inquiring as to the whereabouts of their young son. The yelling by the defendant disrupted the class and required that Young stop giving individual instruction on a computer to a student. The disturbance continued for a few minutes until Young, another teacher, a student and the defendant went downstairs and out of the building. Young and another teacher asked the defendant to leave. Verbal exchanges continued between the defendant and the two teachers until they went downstairs and left the building.

The first claim by the defendant is that the trial court erred in denying his motion for separate trials.

The defendant was charged in one information containing two counts, each charging a separate offense. A motion by the defendant for separate trials was denied by the court. Both charges arose out of the events which occurred on June 11, 1985, at the classroom in the building leased by the Middletown board of education. The witnesses who testified as to the disorderly conduct charge would also have testified in a separate trial on the criminal trespass charge. The question of severance is within the sound discretion of the trial court, and that discretion must not be disturbed unless it has been manifestly abused. State v. Schroff, 198 Conn. 405, 408, 503 A.2d 167 (1986). The discretion to order separate trials should be exercised only when a joint trial will be substantially prejudicial to the rights of the defendant. Id. The evidence presented in the case was easily separable, and the jury was instructed to consider the cases separately. It is perfectly clear that the jury was able to follow the instruction because it found the defendant not guilty as to one count. See State v. Frazier, 7 Conn. App. 27, 38, 507 A.2d 509 (1986).

There was no error in denying the motion for separate trials.

In his second claim of error, the defendant claims that the trial court erred in failing to instruct the jury on all the essential elements of the crime of disorderly conduct. One of the defendant’s exceptions to the charge was that, in defining and explaining disorderly conduct to the jury, the court essentially followed Wright’s Connecticut Jury Instructions but made some departures therefrom. The exception was taken as follows: “Now, on 3 and 4, Your Honor left out about eight lines in both cases defining a person acts intentionally with respect to result or to conduct and defining reckless

In explaining disorderly conduct, the court read General Statutes § 53a-182 (a) (2) and instructed the jury that the state must prove beyond a reasonable doubt that the defendant intended to cause inconvenience, annoyance or alarm, or, in lieu of proving intention, that he recklessly created a risk thereof. The court then charged as follows: “Now, a person acts intentionally with respect to conduct when his objective is to engage in such conduct. A person acts recklessly with respect to a result when he’s aware of and consciously disregards a substantial and justifiable risk that such result will occur. And the risk must be of such nature or degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” It is apparent that in the transcription of the charge, the word “justifiable” appears in place of “unjustifiable” through error. No claim is made by either party that the court actually said “justifiable” rather than “unjustifiable.”

The defendant complains that the definitions of “intentionally” and “recklessly” did not accurately follow the statutory definitions. General Statutes § 53a-3 (11) provides: “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” General Statutes § 53a-3 (13) provides: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” The language of the charge closely tracks the language of § 53a-3 (11) defining “intentionally” and § 53a-3 (13) defining “recklessly.” The court read and explained § 53a-182 (a) (3) and § 53a-182 (a) (4) to the jury, but it did not again define “intentionally” and “recklessly.”

The charge was clear and concise and adapted to the issues. The court was not required to repeat the statutory definitions which it had given moments before to the jury. The jury could not have been mistaken about the meaning of “intentionally” and “recklessly” as those words are used in the statute. The charge properly and adequately covered the subject matter of the exception. State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986). In addition, the statutory definitions were read completely in response to a question from the jury.

The defendant has made additional attacks on the charge in the section of his brief dealing with this claim of error. Although these attacks were not covered specifically by the defendant’s exceptions to the charge, we note that he was interrupted by the trial court as he took his exception to the court’s instructions on disorderly conduct and was not able to complete what he had started to say. These claims also raise asserted departures from the language of Wright’s Connecticut Jury Instructions and may fairly be considered to be within the intended exception.

The defendant complains that the trial judge watered down the requirement of proof of intent in explaining disorderly conduct to the jury. Although the trial judge read General Statutes § 53a-182 (a) (2), (3) and (4) verbatim to the jury twice during its charge, it also explained each subsection to the jury. In doing so, a part of the charge was as follows: “It must be proven by the state beyond a reasonable doubt that if the defendant intended to cause inconvenience, annoyance or alarm, or in lieu of proving intention, that he recklessly created a risk thereof by engaging in the forbidden conduct.” The court then went on to define “intentionally” and “recklessly.” The defendant argues that the use of the word “if” and the phrase “in lieu of” in the passage quoted had the effect of relieving the jury of the necessity to consider proof of intent. He also claims that because “recklessness” requires a finding that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk, it is simply another way of saying “intentional.” We reject these claims by the defendant and find no error.

In his third claim of error, the defendant attacks the court’s charge on the second count.

The second count of the information charged the defendant with disorderly conduct, “in violation of General Statutes [§] 53a-182 (a) (2) (3) (4).” The various subsections were not separated in any way, either by punctuation or use of the conjunctive “and” or the disjunctive “or.” The statute, however, is written in the disjunctive and spells out six ways in which the crime of disorderly conduct may be committed. The information may not charge in the disjunctive because it would then be uncertain which of the accusations was intended. State v. Eason, 192 Conn. 37, 40, 470 A.2d 688 (1984).

After its charge on criminal trespass, the court said: “Now, in addition to criminal trespass in the first degree the accused is charged of course with disorderly conduct. As I indicated to you earlier there are three ways that the state says he could have committed this crime. Any one of the three will suffice.” It defined disorderly conduct in each of the three ways charged in the information. In so doing, the court charged: “First, we’ll take up the one that has to do with interference.” Reading General Statutes § 53a-182 (a) (2), it instructed the jury that one is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he, by offensive or disorderly conduct, annoys or interferes with another person. The court subsequently charged: “Now, another way that one could be in violation of the statute on disorderly conduct is by making unreasonable noise.” It then read § 53a-182 (a) (3) and explained it to the jury. After this, the court charged: “Now, the third way that the state alleges this gentleman engaged in disorderly conduct was by interfering with a meeting of other persons.” It then read § 53a-182 (a) (4) and explained it to the jury. After it had completed its charge on disorderly conduct, the court said: “Now, ladies and gentlemen, in conclusion, may I remind you that whatever your verdict, it must be arrived at unanimously and in consideration of these crimes you will consider each individually without regard to the other.” The court said later: “When you’ve arrived at a verdict which, remember, must be unanimous, you will inform the sheriff.”

Before any evidence was taken, the court addressed the jury and explained the elements of the offenses, the functions of the court and the jury, the presumption of innocence and the burden of proof. During this address, the court said: “[Y]ou must treat each count-each crime—separately as you analyze it.”

After the jury had retired to deliberate, they sent out a question. The court said: “Alright. The question is the jury would like a copy of the statute for criminal trespass 1st and disorderly conduct and any applicable definitions, specifically a clarification of reckless disregard . . . .” The court sent for the jury and explained that it could not provide copies of the relevant sections of the General Statutes. It read to the jury the relevant sections of the General Statutes. Before reading § 53a-182 (a) (2), (3) and (4), the court said: “Disorderly conduct—disorderly conduct has about five different ways of—6,1 guess, different ways that it can be violated. The defendant is charged with three—any one of the three would suffice for finding him guilty.” The court read § 53a-182 (a) with the relevant subsections twice more. It then went on to define “recklessly,” “intentionally” and “knowingly” to the jury, reading exactly from General Statutes § 53a-3 (11), (12) and (13).

The defendant did not request a charge on unanimity, nor did he except to the failure of the court to instruct the jury that their verdict must be unanimous as to at least one of the alternative ways in which they might find the defendant to have committed the crime of disorderly conduct. Ordinarily, this failure on the part of the defendant would preclude consideration of his unanimity claim of error. Practice Book §§ 854, 4185 (formerly § 3063). We have previously determined that the kind of claim made here falls into the category of cases which may be given limited review under the rationale of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), to determine whether the defendant was deprived of a fundamental right and a fair trial, and whether a reversal of the judgment is required. See State v. Benite, 6 Conn. App. 667, 671, 507 A.2d 478 (1986).

The defendant contends that because the court failed to instruct the jury to deliberate on each statutory alternative separately and to arrive at a unanimous guilty verdict as to at least one of them, or otherwise to return a not guilty verdict, he was deprived of the fundamental constitutional right to a fair trial.

The sixth amendment to the United States constitution guaranties a defendant in a criminal case the right to a unanimous verdict if his jury consists of only six members. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); State v. Benite, supra. The verdict can only be unanimous when all the jurors are in substantial agreement as to just what the defendant did as a step preliminary to determining whether the defendant is guilty of the crime charged. United States v. Gipson, 553 F.2d 453, 457-58 (5th Cir. 1977). If the actions necessary to constitute a violation of one subsection of a statute are distinct from those necessary to constitute a violation of another, then jurors who disagree on which violation the state proves cannot be deemed to agree on the conduct the defendant committed. State v. Benite, supra, 674.

The defendant was charged with committing disorderly conduct in three conceptually distinct ways. He was charged under subsection (2) of § 53a-182 (a) with annoying or interfering with another person by offensive or disorderly conduct. He was charged under subsection (3) of § 53a-182 (a) with making unreasonable noise. He was charged with subsection (4) of § 53a-182 (a) with disturbing a lawful assembly or meeting of persons without lawful authority. Although there was evidence from which the jury might have found that the defendant was guilty of disorderly conduct under any or all three of the alternatives, we conclude that the trial judge adequately explained to the jury that its unanimous verdict of guilty of disorderly conduct must rest upon any one, but only one, of the three alternatives charged in the information.

After the jury verdict was reported, the defendant requested a poll of the jury on the second count. Thereupon, the court ordered that the jury be polled on the second count. Each of the jurors responded to that clerk that he or she found the defendant guilty on the second count. The defendant did not make any additional requests, and gains nothing now from his assertion that the trial court ought to have gone further and inquired of each juror as to whether they had agreed on any of the three alternatives charged in the information.

The jury was adequately instructed that a guilty verdict must rest on any one of the alternatives charged. We find no error.

The defendant’s fourth claim of error is that the court erred in submitting to the jury the charge of disorderly conduct because the evidence was insufficient to establish guilt beyond a reasonable doubt.

The defendant moved for judgment of acquittal at the close of the state’s case on the grounds of insufficiency of the evidence. In determining whether the evidence is sufficient to sustain a verdict, the issue is whether the jury could reasonably have 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. State v. Williams, 202 Conn. 349, 354, 521 A.2d 150 (1987). The jury could reasonably have found that the facts set out heretofore were sufficient to justify the verdict.

The argument by the defendant that he could not have been found guilty of being on the premises without lawful authority because he had been found not guilty of criminal trespass is without merit. The elements necessary to prove criminal trespass in the first degree are different from those necessary to prove disorderly conduct by disturbing a lawful assembly or meeting of persons without lawful authority. The jury was properly instructed that the state was required to prove beyond a reasonable doubt that the defendant intended to cause inconvenience, annoyance or alarm, or recklessly created a risk thereof, that his conduct was such as to disturb or disrupt a lawful assembly or meeting of persons, and that the defendant had no lawful authority to engage in such conduct. The defendant relies upon State v. Grant, 6 Conn. App. 24, 27, 502 A.2d 945 (1986), for a claim that the trial court should have defined “lawful.” That case involved a charge on burglary to which a statutory definition of “enters or remains unlawfully” is specifically applicable. That is not so in this case.

The remaining arguments on this claim of error amount to claims that we should retry the facts, which we will not do.

The fifth claim of error was that the court erred in submitting to the jury the charge of disorderly conduct in violation of § 53a-182 (a) (2) because the defendant’s speech was constitutionally protected.

The defendant argues that because other subsections of § 53a-182 (a) deal with disturbing meetings, unreasonable noise and fighting, subsection (2) must logically mean speech when it prohibits annoying or interfering with another person. From this, he argues that because his language was appropriate and inoffensive, it is constitutionally protected. There appears to be no claim on the part of the state that the words uttered by the defendant were offensive in themselves. It was not the words uttered but the manner in which they were uttered which the jury might have found, in concert with the activity of the defendant, to have been offensive and disorderly and to have annoyed or interfered with another person. It was not error to submit § 53a-182 (a) (2) to the jury.

The final claim of error is that the trial court erred in its charge on intent because it relieved the state of the burden of proving this statutory element.

The court gave the jury an unexceptionable charge on proof of intent by inference. The defendant did not except to the charge on intent. There was an exception as discussed previously to the failure to define “intentionally” as the court explained each of the subsections of § 53a-182 (a) recited in the information. Nevertheless, the claim that the charge relieved the state of its burden of proving intent is reviewable under the “exceptional circumstances” rule of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). State v. Fernandez, 198 Conn. 1, 18, 501 A.2d 1195 (1985).

The court charged the jury in part: “The only way in which a jury can determine what a man’s purpose, intention or knowledge was at any given time, aside from the man’s own testimony, is by determining what the man’s conduct was and what the circumstances were surrounding that conduct and from those infer what his purpose, his intention or his knowledge was.

“To draw such an inference is not only the privilege but the duty of a jury, provided, of course, the inference drawn is a reasonable inference. In this case, therefore, it will be a part of your duty to draw all reasonable inferences from the conduct of the defendant in the light of the surrounding circumstances as to what purpose, intention or knowledge was in his mind as it relates to the commission of the crimes charged.

“Now, in his summation the defendant raised the issue of motive and so I’ll now charge you as to motive, both for explanation purposes as to its—the proper consideration—and a further example of the use of circumstantial evidence.

“The law does not require that the state, in order to get a conviction in a criminal case, prove motive.”

The defendant argues that the quoted portion of the charge related “intent” with “purpose,” and hence with “motive.” When it thereafter charged that the state did not have to prove motive, the defendant asserts that the court relieved the state of the burden of proving intent. This argument, while it has a certain ingenuity, might better be described perhaps as ingenuous. The trial court did not, by this charge, relieve the state of the burden of proving intent.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-182 provides: “DISORDERLY conduct: class c misdemeanor, (a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse.
      “(b) Disorderly conduct is a class C misdemeanor.”


author: Daly, J.

text:
    Clyde Haggerty v. Chester Parniewski et al. Anthony Bredice v. Ronald W. Owens et al.
    (4598)
    (4599)
    Dupont, C. J., Hull and Daly, Js.
    Argued February 10
    decision released May 19, 1987

      Raymond Ganim and Thomas J. Rosati, for the appellants (plaintiffs).

      Richard P. Gilardi and Salvatore C. DePiano, for the appellees (defendants).
   Daly, J.

The plaintiffs in these combined appeals are police lieutenants who were unsuccessful candidates for promotion to the position of police captain in the town of Stratford. Each sought to void the same promotional examination conducted in June, 1985. Further, the plaintiff Anthony Bredice sought to enjoin Ronald W. Owens, the town manager of Stratford, and the plaintiff Clyde Haggerty sought to enjoin Chester Parniewski, the police chief of Stratford, from filling such positions. The remaining defendants are the four candidates who passed the examination. The plaintiffs claim the trial court abused its discretion when it denied their claims for injunctive relief. We disagree.

In 1976, an examination to establish an eligibility list for the position of police captain was conducted by the town of Stratford. This examination was rendered invalid by our Supreme Court in DiFederico v. McNamara, 181 Conn. 54, 434 A.2d 320 (1980). After the Supreme Court action, a vacancy existed for the position for approximately nine months. After that time lapse, the town ceased appropriating budget money to fund the position.

In May, 1985, the town of Stratford announced that an examination to establish an eligibility list for the position of police captain would be held on June 10 and June 13,1985. There were eight candidates. The plaintiffs are among the four unsuccessful candidates.

Fifty percent of the promotional examination’s weight consisted of a written examination, and 50 percent consisted of an oral examination, both of which were totaled on a numerical scale. Prior to either the written or the oral examination, a service rating was given to all candidates on a pass-fail basis. All eight candidates passed the service rating portion. A passing grade on the examination as a whole consisted of a combined written and oral score of 70 percent, and a passing grade on the service rating portion.

“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. The allegations and proof are conditions precedent to the granting of an injunction. . . . These elements are so crucial that a party’s failure to allege and prove them is sufficient ground for sustaining the refusal to grant an injunction . . . .” (Citations omitted.) Hartford v. American Arbitration Assn., 174 Conn. 472, 476, 391 A.2d 137 (1978).

“A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion.” Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). We conclude that the court’s ruling in each of these cases was not an abuse of its discretion or otherwise erroneous in law.

Bredice, relying on a collective bargaining agreement entered into by the police union and the town, and in effect from July 1, 1980, to June 30, 1983, contended that after the 1976 examination which he had passed was declared invalid by the Supreme Court, the delay in conducting a subsequent examination enabled candidates who had been ineligible to compete in 1976 to become eligible to participate in the 1985 examination. Bredice failed to plead and prove irreparable harm or lack of an adequate remedy at law both of which are necessary prerequisites to injunctive relief.

The trial court’s denial of injunctive relief to Bredice was based on its finding that “the Promotional Examination was properly administered and conducted” and was not invalid. The trial court similarly denied Haggerty’s request on the basis of its finding that the procedure used to grade the service rating portion of the examination did not violate the regulations delineated in the police manual.

Bredice argued that because article XXVIII, § 8, of the collective bargaining agreement of 1980 provided in part that “[promotional lists shall exist at all times for all ranks,” the town should have conducted a new examination after the DiFederico v. McNamara decision in order to have an eligibility list “at all times.” He further argues that such a promotional examination should have been limited to only those who were eligible to take it in 1976.

Bredice did nothing until the results of the 1985 examination were announced and he learned that he had not passed. The defendants maintained that Bredice was guilty of laches. Bredice, on the other hand, argued that his action is one on the contract, i.e., the collective bargaining agreement, and is, therefore, subject to a six year statute of limitations.

Laches consists of two elements. First, there must have been a delay that was inexcusable, and, second, that delay must have prejudiced the defendants. Bozzi v. Bozzi, 177 Conn. 232, 239, 413 A.2d 834 (1979). A mere lapse of time does not constitute laches unless it results in prejudice to the defendants. Such prejudice results if the defendants are led to change their position with respect to the matter in question. Nauss v. Pinkes, 2 Conn. App. 400, 411, 480 A.2d 568, cert. denied, 194 Conn. 808, 483 A.2d 612 (1984). Whether a plaintiff is guilty of laches is a question of fact for the trier and not one to be answered by this court unless the subordinate facts found make such conclusion inevitable as a matter of law. Papcun v. Papcun, 181 Conn. 618, 621, 436 A.2d 282 (1980). The trial court in this case found that the failure of Bredice to file suit in a timely manner resulted in prejudice to the defendants. The later successful candidates spent time and effort in studying for the examination, and the town expended time and effort in preparing and administering the examination.

Bredice’s claim, that the statute of limitations for an action on the contract has not run, is without merit as applied to the facts of this case. Generally, the proper procedure for asserting a claim on a collective bargaining agreement is through the grievance procedure embodied in the agreement. See generally Wolf v. Gould, 10 Conn. App. 292, 522 A.2d 1240 (1987). We note, however, that such promotional examinations and lists are not subject to collective bargaining. See D’Agostino v. New Britain, 7 Conn. App. 105, 507 A.2d 1042, cert. denied, 200 Conn. 806, 512 A.2d 229 (1986); Local 773 v. Bristol, 39 Conn. Sup. 1, 5, 463 A.2d 628 (1983); see also General Statutes § 7-474 (g). Thus, this argument is self-defeating. Bredice cannot rely on the contract (the collective bargaining agreement) because the examination he challenges is not covered by it. Since the examination is not covered by the contract, Bredice cannot avail himself of the contract statute of limitations.

Bredice relies heavily on Walker v. Jankura, 162 Conn. 482, 294 A.2d 536 (1972). In that case, a police promotional examination was challenged. Our Supreme Court upheld the trial court’s conclusion that the examination was invalid because it was administered in contravention of the specific timing requirements of the city charter, and in violation of the applicable civil service commission rules which required an examination and promotional list to be compiled within 120 days. In addition, in Walker v. Jankura, supra, 488-89, the trial court found and the Supreme Court agreed that the delay was arbitrary. Finally, the court disapproved of the city’s use of increased length of employment requirements in qualifying to take the examination. For all of these reasons, the Supreme Court determined that the trial court had not abused its discretion in ordering that the new examination be open only to candidates who were eligible to take the examination on the original test date.

. In the present case, the delay was not arbitrary but was tied directly to the lack of funding for the position. In addition, the standards for passing the examination and the prerequisites to taking the examination were not changed. Thus, Walker v. Jankura, supra, is not controlling. Bredice has failed to sustain his burden of proving that the trial court abused its discretion.

Haggerty did not achieve a combined score of 70 percent on the written and oral portions of the examination. Haggerty also relied on the 1980-1983 collective bargaining agreement and maintained that the service ratings portion of the examination should have been graded numerically rather than on a pass-fail system, thereby increasing his overall score.

Haggerty claimed that § 18 (4) of the Stratford police manual, which provides that “all persons eligible to compete for any promotion shall be given promotional examinations consisting of written tests, service ratings, credits for seniority, and oral interview,” required the entire examination to be graded numerically. This section of the manual constituted the relevant regulation regarding police promotion. Regulations such as this are presumed valid and, absent a showing that they violate state statutes, they have the force and effect of statutes. DiFederico v. McNamara, supra, 56.

Haggerty did not dispute that a service rating test was administered but maintained that it should have been numerically graded rather than graded on a pass-fail basis. All the candidates, including Haggerty, passed this segment of the test. The trial court found that numerical grading was not required by any provision in the police manual. The court concluded and we agree that Haggerty failed to demonstrate that the grading of the examination violated § 18 (4) of the manual.

We conclude that the trial court’s ruling was not an abuse of discretion or otherwise erroneous in law.

There is no error on either appeal.

In this opinion the other judges concurred.

       Testimony at trial indicated that the “service rating” was made on the basis of interviews conducted by the chief and deputy chief of police of candidates to determine their administrative skills.


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    Janet D. Livsey v. James W. Livsey
    (4754)
    Dupont, C. J., Boeden and Daly, Js.
    Argued March 3
    decision released May 19, 1987

      Susan E. Halperin, with whom, on the brief, was Edward J. Murphy, for the appellant (intervening defendant).

      James L. Radda, for the appellee (plaintiff).
   Daly, J.

The marriage between the parties was dissolved by judgment dated March 20, 1980. At that time it was ordered, pursuant to a written agreement between the parties, that the defendant husband would pay the plaintiff wife $75 per week for the support of two minor children until December 28,1987, which was the date of the younger child’s twenty-first birthday. Furthermore, the husband was ordered to quitclaim his interest in the marital home to the plaintiff who was to assume all of the expenses of maintaining the property. Upon sale of the property, or on December 28, 1988, whichever came first, the plaintiff was to pay $15,000 to the defendant.

On March 16,1982, the defendant assigned his interest in the $15,000 payment to Selma D. Halperin (the intervening defendant) for consideration of only $1200. This assignment was recorded on the land records.

On November 8,1982, upon motion by the plaintiff, the trial court modified the original judgment and ordered the husband to release approximately $9000 of his equitable interest in the marital home. That figure represented an arrearage in child support payments, sheriffs fees and attorney’s fees. The defendant executed the release on December 1, 1982, and it was recorded on the land records.

On March 27, 1985, the plaintiff moved to cite in Selma Halperin as a party defendant (hereinafter the intervening defendant). That motion was granted by agreement.

In April, 1985, the plaintiff moved to hold the defendant in contempt claiming that between the time of the modification in November, 1982, to January 30,1985, there had accrued an arrearage of child support payments in the amount of $12,868. She sought relief by extinguishing the defendant’s remaining interest in the $15,000 and ordering the defendant to obtain a release of his assignment to the intervening defendant.

In June, 1985, the intervening defendant moved to vacate the order of November 8,1982, claiming the trial court lacked jurisdiction to enter such an order modifying the assignment of realty to the husband.

In its July, 1985 memorandum of decision on the plaintiff’s April contempt and modification motion, the trial court stated that at oral argument the parties had stipulated to a total arrearage of $19,743 including child support, attorney’s fees and sheriffs fees. Accordingly, the court ordered that the “[pjlaintiff shall have a lien to secure this arrearage against the sum of $15,000 that she was ordered to pay [the husband]. If the arrearage has not been paid prior to the time the $15,000 payment comes due, then the plaintiff’s obligation in this regard shall be discharged to the extent of the arrearage.”

The intervening defendant thereafter moved to open this finding and requested a clarification of the decision since her interests were unresolved. Such motion was denied on December 2, 1985. The defendant filed no motions of any kind.

While the defendant has not appealed, the intervening defendant has appealed from the actions of the trial court dated November 8, 1982, July 30, 1985 and December 2,1985, contending that the trial court lacked personal jurisdiction over her and lacked subject matter jurisdiction to modify an assignment of the marital property. We do not reach the merits of this claim because we conclude, sua sponte, that the intervening defendant was improperly made a party to this action, and therefore, she has no standing to appeal. See LaBow v. LaBow, 171 Conn. 433, 441, 370 A.2d 990 (1976); Nader v. Altermatt, 166 Conn. 43, 53, 347 A.2d 89 (1974); Housing Authority v. Local 1161, 1 Conn. App. 154, 157, 468 A.2d 1251, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). There are certain categories of persons who are permitted to intervene in a dissolution action. The attorney general is permitted to become a party under General Statutes § 46b-55; any interested third party may intervene with regard to the custody of minor children under § 46b-57; parties having physical custody of a child may be made parties under General Statutes § 46b-100; and any person may request visitation rights under General Statutes § 46b-59. See Manter v. Manter, 185 Conn. 502, 441 A.2d 146 (1981). The intervening defendant does not come within any of these categories.

The judgments which the intervening defendant seeks to open are singular in nature, relating specifically to orders which were concomitant to a judgment dissolving the marriage of two individuals. That judgment established the personal status of the parties, and their obligations to one another arising from that status. They had been married; it made them single. Part of that judgment also delineated the obligations of each to their children. That judgment, and those orders which later modified it, cannot be opened at the request of a complete stranger to the original judgment. The consequences of those judgments are too remote and of too indirect a character to give the intervening defendant any cause of action. This and other courts exist to provide relief to parties whose rights have been infringed. The intervening defendant had no right to enter the case, and has no right to appeal to correct any perceived wrongs done to the defendant in the dissolution. Tyler v. Aspinwall, 73 Conn. 493, 498, 47 A. 755 (1901). In this case, the defendant has not appealed any orders. In fact, in November, 1982, he executed a release of at least $9000 of his interest in the marital home. The intervening defendant “has no standing to attack collaterally an earlier divorce decree to which [s]he was a stranger and in which [s]he had no legally protected interest which would have been affected by the decree itself at the time it was rendered.” Fattibene v. Fattibene, 183 Conn. 433, 436, 441 A.2d 3 (1981), citing Tyler v. Aspinwall, supra.

Any redress to which the intervening defendant may be entitled is more properly addressed to the defendant in a separate action. We conclude that the intervening defendant lacks proper party status in this case, and thus also lacks standing to appeal.

The appeal is dismissed.


text:
    State of Connecticut v. Lorenzo Richard Widget
    (4095)
    Dupont, C. J., Daly and Bieluch, Js.
    Argued January 5
    decision released May 19, 1987

      John R. Williams, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, were James G. Clark and David Cohen, assistant state’s attorneys, for the appellee (state).
   Bieluch, J.

The defendant appeals from a judgment of conviction after a jury trial on a charge of possession of cocaine with intent to sell or dispense, a violation of General Statutes § 21a-277 (a). His only claim on appeal is that the trial court’s instructions on circumstantial evidence constituted plain error and denied him due process of law. We find no error.

The jury could reasonably have found the following facts. On October 10,1984, at approximately 7:30 p.m., five officers of the Stamford police department surrounded a single-family two-story residence at 223 Henry Street, Stamford, preliminary to executing a search warrant. One officer was stationed at the front of the house, two officers were positioned at the rear and two officers undertook to execute the search warrant by entering through the front door. A woman answered the door, but refused to allow the police officers to enter the house. During the attempted entrance under the warrant, Officer Michael Docimo, stationed in the front of the house, saw a shirtless black male come to the second floor front window of the dwelling and quickly leave. Docimo informed the two officers who were seeking entrance to execute the search warrant, John Fontineau and John Geter, of what he had just seen, whereupon the two officers made a forced entry into the home and ran upstairs to the second floor. There, they observed the defendant, who was black and not wearing a shirt, leaning out of the front window and appearing to throw something out of that window. At the same time, Docimo saw a shirtless black male come again to the front window and throw out a plastic bag containing thirteen grams of a white powder, which Docimo caught. The defendant was immediately arrested by the two officers in the front room. A search of the room resulted in the discovery and seizure of the following contraband: various items of paraphernalia covered with traces of white powder, a package containing rice and white powder, sixteen packets containing a white powder and $4946 in cash. The contents of the plastic bag thrown out of the window and the white powder seized in the room were later identified as cocaine. The only other persons in the house at the time of the defendant’s arrest were the elderly woman, who had refused the officers entrance to execute the search warrant, two other adults and a very young boy.

The defendant was charged by substitute information with one count of possession of cocaine with intent to sell or dispense, a violation of General Statutes § 21a-277 (a). The defendant pleaded not guilty to the charge and elected to be tried by a jury. At the trial, the defendant denied possession of the cocaine. Docimo testified at trial as to the actions of the man he saw at the front window, but he was unable to identify the defendant as that person. Officers Fontineau and Geter testified that, upon entering the house, they immediately ran upstairs to the room indicated by Docimo and saw the defendant leaning out of the front window and making a throwing motion. He was not wearing a shirt and appeared to be throwing something out the window. At the time of the officers’ observations and the arrest, the defendant was the only person in the room. There were, however, three other adults in the house at that time.

During its charge to the jury, the court gave the following instruction relative to circumstantial evidence: “When you are satisfied as to the existence of the facts from which you are asked to conclude the existence of another fact, it is your duty and your function to draw that reasonable and logical inference or conclusion. Does it enter this case? In many respects. An example, and I am not bringing it up to give you any weight or encouragement to accept it. Reject it if you do not believe it happened, do not spend any time on it. But if an officer says that he saw a man bare-chested in a window, and two others simultaneously are going up the stairs and they locate a man bare-chested in the room, you have facts. If you believe them. That is your function. I make no comment. That is your function. If you believe that, then it is a reasonable and logical conclusion for you to consider that the person in the room was the person in the window. That is circumstantial evidence. That is drawing a conclusion or an inference from facts in evidence. But remember the basic, fundamental test is, do you believe the existence of the fundamental facts? Are they credible and reliable, for you to believe that the other facts existed? And from those, is it reasonable and logical to draw the conclusion? In passing upon the guilt of an accused person on the basis of circumstantial evidence, you must be satisfied beyond a reasonable doubt first that the certain facts or circumstances existed and the existence of those facts do beyond a reasonable doubt reasonably and logically lead you to other facts establishing that the crime was committed by the accused. Unless the existence of those facts, either alone or in conjunction with other direct evidence, compels you as reasonable men and women to only one conclusion, namely, that the accused is guilty, then of course you will be not justified in finding him. guilty.” The defendant took no exception to this charge at trial. The jury returned a verdict of guilty and the defendant was sentenced accordingly.

The defendant claims for the first time in this appeal that the court’s instruction was erroneous. He asserts that the only fact in issue was whether the man Docimo saw in the window, thro wing out the cocaine was the defendant. His objection to the court’s charge is premised upon the instruction that if the jury believed that the officer outside saw a bare-chested man in the window, and the other two officers then entered the house and found a man alone and bare-chested in the room, “then it is a reasonable and logical conclusion for you to consider that the person in the room was the person in the window.” He characterizes this statement as a mandatory presumption instruction prohibited by the fourteenth amendment to the constitution of the United States. He claims review of the instruction under the exceptional circumstances of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). We agree that this claim is reviewable. See State v. Smith, 201 Conn. 659, 672, 519 A.2d 26 (1986); State v. Acklin, 9 Conn. App. 656, 664, 521 A.2d 165 (1987).

Our standard for review for challenges to jury instructions is well established. “The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done.” State v. Storlazzi, 191 Conn. 453, 466, 464 A.2d 829 (1983); State v. Parent, 8 Conn. App. 469, 476, 513 A.2d 725 (1986). In reviewing the charge, we also note that “[t]he court may, in its discretion, make reasonable comments on the evidence. See, e.g., Marko v. Stop & Shop, Inc., 169 Conn. 550, 562, 364 A.2d 217 [1975]; State v. Cari, 163 Conn. 174, 182, 303 A.2d 7 [1972]. Its comments, however, should be fair, must not amount to a direction of a verdict and should present the case in proper focus. State v. Wade, 96 Conn. 238, 245-46, 113 A. 458 [1921].” State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117 (1976).

We conclude that the court’s charge was a correct and fair statement of the law of circumstantial evidence and did not amount to the direction of a verdict of guilty. Nowhere in the charge did the court tell the jury that they must find the defendant was the man seen throwing the plastic bag of white powder out of the second story window. The court, in describing the operation of circumstantial evidence under the facts of this case, cautioned the jury several times that they were free to disregard the underlying facts as well as the inferences which may be drawn from such underlying facts if they were not convinced beyond a reasonable doubt of them. It carefully instructed the jury that they must find beyond a reasonable doubt that certain underlying facts or circumstances existed and that the existence of those facts did, beyond a reasonable doubt, reasonably and logically lead the jury to other facts establishing that the crime was committed by the accused.

We also note that the court cautioned the jury several times that its example of circumstantial evidence describing the facts in evidence was not to be afforded any weight or seen as encouraging their verdict, but was merely given for the purpose of illustrating how circumstantial evidence was to be applied by them in the case. In no way could the court’s charge be construed as a mandatory presumption that the defendant was the man seen throwing the bag of white powder from the window. The issues of identity of the offender and possession of cocaine were properly reserved for, and determined by, the jury.

There is no error.

In this opinion the other judges concurred.

       The defendant was originally charged in four counts as follows: (1) possession of narcotics, in violation of General Statutes § 21a-279 (a); (2) possession of narcotics with intent to sell, in violation of General Statutes § 21a-278 (a); (3) possession of drug paraphernalia, in violation of General Statutes § 2la-267 (a); and (4) interfering with a search warrant, in violation of General Statutes § 54-33d. He was tried and convicted on a substitute information charging the single offense of possession of cocaine with intent to sell or dispense, in violation of General Statutes § 21a-277 (a).
      The judgment file incorrectly shows that the defendant was charged with and convicted of possession of narcotics, in violation of General Statutes § 21a-279 (a).

       The record demonstrates that the search warrant was issued for 225 Henry Street. The premises actually searched were located at and known as 223 Henry Street. Prior to trial, the defendant sought the suppression and return of the property seized for the reason, inter alia, that the police officers “entered, searched, and seized property from premises for which they had no valid search warrant and no probable cause to search.” This motion was denied without a written memorandum of decision. In this appeal the defendant does not claim the denial of that motion as error.
      A detailed physical description which speaks to the precise location or appearance or character of the premises will prevail over a street address. 2 W. LaFave, Search and Seizure (2d Ed.) § 4.5 (a), pp. 212-13.

       We note that the defendant’s argument, in part, is apparently based upon the erroneous premise that the defendant must be found in actual physical possession in order to be convicted under General Statutes § 21a-277 (a). To fall within that statute, possession may be either actual or constructive, and one can only throw away what he physically possessed. See State v. Vilalastra, 9 Conn. App. 667, 673-75, 521 A.2d 170, cert. granted, 203 Conn. 806, 525 A.2d 520 (1987).