text:
    Lynda Blau v. State Board of Education et al.
    (7652)
    (7653)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued June 13 —
    decision released August 22, 1989

      Diane Woodfield Whitney, assistant attorney general, with whom were, Victor Schoen and, on the brief, Cla

      riñe Nardi Riddle, acting attorney general, and John R. Whelan, assistant attorney general, for the appellants (defendants).

      Edward J. Peters, Jr., with whom, on the brief, was Anthony C. Polvino, for the appellee (plaintiff).
   Daly, J.

The defendants, the state board of education and the town of East Hampton board of education, appeal from the judgment of the trial court sustaining the plaintiffs appeal. The defendants claim that the trial court erred (1) in failing to grant their motions to dismiss, (2) in sustaining the plaintiffs appeal, and (3) in ordering the defendants to provide the plaintiffs requested relief, rather than remanding the matter for reconsideration. We find error in part.

The trial court found the following facts. On August 21, 1987, the plaintiff filed a petition with the defendant town of East Hampton board of education (town board) seeking bus transportation for her son pursuant to General Statutes § 10-186. The town was, at that time, providing the plaintiffs son with bus transportation to school, but the plaintiff sought to have her son picked up at their residence rather than at the established bus stop. After a hearing, the town board denied the petition. The plaintiff appealed the decision to the defendant state board of education (state board) pursuant to General Statutes § 10-186 (b) (2). Thereafter, the parties discovered that the tape recording of the hearing before the town board was inaudible and could not be reduced to writing as required by § 10-186 (b) (1). A new hearing was held before the town board, which again denied the petition.

On November 20, 1987, the plaintiff recertified her appeal to the state board. The state board, pursuant to § 10-186 (b) (2), appointed a hearing board. The hearing was held on December 9,1987. The hearing board rendered its decision dismissing the appeal on January 28,1988, by filing its decision with the state board.

The plaintiff then filed her appeal to the Superior Court pursuant to General Statutes §§ 10-187 and 4-183. On December 6, 1988, the trial court sustained the plaintiffs appeal on the basis of the late filing of the hearing board’s decision, in violation of § 10-186 (b) (3), and ordered the town board to furnish transportation for the plaintiff’s son from their residence.

The defendants’ first claim is that the trial court erred in denying their motions to dismiss the plaintiff’s appeal. The defendants advance the same argument raised before the trial court, namely, that the allegations of fact contained in the plaintiff’s complaint are insufficient to constitute aggrievement.

Pleading and proof of aggrievement is a prerequisite to a trial court’s jurisdiction over the subject matter of an appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Unless a party can establish aggrievement, that party has no standing to appeal. General Statutes § 4-183 (a). Moreover, the mere statement that the party is aggrieved, without supporting allegations as to the particular nature of the aggrievement, is insufficient for a court to determine aggrievement. Beckish v. Manafort, supra.

The third paragraph of the plaintiff’s complaint stated “[o]n or about September 8, 1987, the defendant town board issued its findings of facts, conclusions and decision denying the petition of the plaintiff. Plaintiff was, and remains, aggrieved by this decision.” Paragraphs eleven and twelve alleged the plaintiff’s continuing aggrievement due to the state board’s denial of her appeal from the town board’s decision. The record reveals that the complaint sufficiently alleged that the plaintiff was aggrieved when the defendants failed to alter the school bus stop to the front of her residence, despite her claim that she was so entitled. See, e.g., Waterford v. State Board of Education, 148 Conn. 238, 169 A.2d 891 (1961) (failure of town to provide transportation that is reasonable and desirable is failure to furnish “school accommodations”).

The question of aggrievement is a factual one to be determined by the court on appeal; Hughes v. Town Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968); and the decision cannot be overturned or modified unless it is clearly erroneous in view of the evidence and pleadings in the whole record. Practice Book § 4061. We conclude that the trial court did not err in denying the defendants’ motions to dismiss for lack of aggrievement.

The defendants next claim that the trial court erred in sustaining the plaintiff’s appeal. The court sustained the appeal on the sole basis that the hearing officer filed his decision outside the time limit set forth in General Statutes § 10-186 (b) (3), which limit it held to be mandatory. The defendants argue that the time limit provision is directory, not mandatory. We agree.

“ ‘ “For the reason that individuals or the public should not be made to suffer for the dereliction of public officers, provisions regulating the duties of public officers and specifying the time for their performance are in that regard generally directory.” 2A Sutherland, Statutory Construction (4th Ed. Sands) § 57.19. Unless there is a reason to believe that the legislature intended that the duty not be performed at all except within the time prescribed or that the time restriction should be considered a limitation upon the power of the tardy officer, failure to act within the time specified should not invalidate the action taken. Id. . . .’ Tramontano v. Dilieto, 192 Conn. 426, 432, 472 A.2d 768 (1984).” Weiss v. Newtown, 4 Conn. App. 200, 202, 493 A.2d 273 (1985). In Weiss, we noted that our courts have previously held, on three occasions, that acts of a public official performed at a time beyond the limit prescribed in the statute are nevertheless effective. Id., 203.

One of the more reliable guides in determining whether a statutory provision is directory or mandatory is whether the provision is accompanied by language that expressly invalidates any action taken after noncompliance with the provision. State v. One 1976 Chevrolet Van, 19 Conn. App. 195, 198, 562 A.2d 62 (1989); Ruotolo v. Inland Wetlands Agency, 18 Conn. App. 440, 448, 558 A.2d 1021 (1989). No such “invalidating” language appears in § 10-186 (b) (3).

Our review of the statute and the law leads us to conclude that the time limit provision in § 10-186 (b) (3) is directory, not mandatory. Accordingly, we hold that the trial court erred in sustaining the plaintiff’s appeal and remand the case for a full review on the merits.

There is error, the judgment is set aside and the case is remanded to the trial court for a review on the merits.

In this opinion the other judges concurred.

       General Statutes § 10-186 (b) (3) provides in relevant part: “The hearing board shall render its decision within forty-five days after receipt of the notice of appeal.”

       Our disposition of the defendants’ second claim of error makes it unnecessary for us to review their final claim.


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    State of Connecticut v. Ray Messler
    (7428)
    Borden, Stoughton and Norcott, Js.

      Argued April 20 —
    decision released August 22, 1989

      Kimball Haines Hunt, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Roseanne Wagner, deputy assistant state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a court trial, of speeding in violation of General Statutes § 14-219 (c). The dispositive issue is whether the court erred in failing to consider the defendant’s defense of necessity. We find error.

The following facts either were found by the court or were undisputed. The defendant was driving east on Route 20 in East Granby at a point where there is a single lane in each direction. The defendant was in a pack of vehicles. When the road widened into multiple lanes, the defendant pulled into the left lane to pass the two cars ahead of him. At the same time, state trooper Peter Strniste, who was patrolling this stretch of highway, gave chase to a speeding vehicle headed east on Route 20. The speeding vehicle passed the pack of vehicles of which the defendant was a part, moments before the defendant pulled into the left lane. Strniste, still in pursuit of the speeding vehicle, closed with the defendant in the left lane and signaled with his lights to allow him to go by. Until he signaled to go by, Strniste noticed nothing objectionable about the defendant’s driving. On seeing Strniste’s cruiser, the defendant increased his speed in order to pass the cars in the right lane and to make way for Strniste. In doing so, the defendant exceeded a speed of seventy miles per hour. After passing the two cars in the right lane, the defendant moved into that lane. Strniste, having lost sight of his original quarry, stopped the defendant and charged him with speeding.

The court found the defendant guilty of one count of speeding, in violation of General Statutes § 14-219 (c) (l). From this judgment the defendant has appealed.

The defendant claims that the court erred in refusing to consider his proffered justification defense when he had presented evidence supporting such a defense. We agree.

As an initial proposition, we agree with the holding of the Appellate Division of the Circuit Court in State v. Weller, 4 Conn. Cir. Ct. 267, 269, 230 A.2d 242 (1967), that “[t]he speeding statute creates a crime which is malum prohibitum. ‘Crimes are either mala in se or mala prohibita, and intent is a necessary element. In crimes which are mala in se, a specific intent, a wrongful intent, to commit the crime must be established, but in crimes that are mala prohibita the only intent requisite to a conviction is the intent or purpose to do the prohibited act.’ State v. Binders, 24 Conn. Sup. 214, 216 [189 A.2d 408 (1962)].” See also State v. Perez, 181 Conn. 299, 316, 435 A.2d 334 (1980).

The trial court found that the defendant violated the speeding statute because he intended to operate his car at an illegal speed. The act of driving the car at an excessive speed creates a permissible inference that the defendant had the intent necessary to do the prohibited act. See Danzell v. Smith, 150 Conn. 35, 39, 184 A.2d 53 (1962). The trial court further held, however, that the defendant’s avowed purpose in speeding, namely, to clear the police cruiser’s path in response to Strniste’s signal, was “of no consequence.” In making this ruling, the trial court specifically relied upon the proposition set out in State v. Zullo, 4 Conn. Cir. Ct. 573, 577-78, 236 A.2d 718 (1967), that a defendant’s intent to do an act proscribed as a malum prohibitum crime cannot be negated by the excuse that the defendant was pursuing a socially desirable end, such as facilitating a state trooper’s performance of his law enforcement duties. To the extent that the trial court’s ruling means that the defendant’s purpose in speeding is irrelevant to the issue of the defendant’s intent to operate his car at the speed in question, we agree. State v. Weller, supra, 269 (only intent requisite to speeding conviction is intention to do prohibited act). It is clear from the record, however, that the defendant’s defense at trial was not concerned with the issue of his intent to drive at the speed in question, but was an attempt to provide a legally recognized justification for his action.

The defendant’s theory of defense, both in the trial court and in this court, is difficult to categorize within a single type, such as entrapment, duress, justification or necessity. It is apparent, however, both from the transcript of the trial, from the defendant’s brief and from his oral argument in this court, that his theory of defense is most readily categorized as a necessity defense. Although at one point during oral argument on his motion for judgment of acquittal the defendant characterized his defense as “entrapment,” he consistently couched the argument for his defense in terms of a choice of evils, likening the situation he faced to what he refers to as a “Hobson’s choice.” By portraying the choice faced by the defendant as being between the conflicting evils of exceeding the speed limit and inhibiting a police officer in the performance of his law enforcement duties, the defendant attempted to present what is essentially a necessity defense.

“[T]he defense of necessity has no statutory basis in Connecticut. In re Juvenile Appeal, 184 Conn. 157, 163-64, 439 A.2d 958 (1981).” State v. Drummy, 18 Conn. App. 303, 308, 557 A.2d 574 (1989). That does not mean, however, that it may not apply in a given case. Chapter 951 of the General Statutes; General Statutes §§ 53a-4 through 53a-23; governs the general principles of statutory construction and criminal liability applicable to the penal code. General Statutes § 53a-4 provides: “The provision of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions.” Thus, the common law necessity defense is available to a defendant to the extent that it is not inconsistent with the principles of criminal liability or defenses established in chapter 951. We conclude that under the particular facts of this case, the necessity defense is not precluded by the penal code.

“At common law, the defense of necessity has been recognized under certain narrowly defined circumstances. See, e.g., United States v. The Diana, 74 U.S. (7 Wall.) 354, 19 L. Ed. 165 (1869). The defense rests upon the proposition that ‘there may be circumstances where the value protected by the law is, as a matter of public policy, eclipsed by a superseding value which makes it inappropriate and unjust to apply the usual criminal rule.’ Commonwealth v. Brugmann, 13 Mass. App. 373, 377, 433 N.E.2d 457 (1982); see also W. LaFave & A. Scott, Substantive Criminal Law (1986) § 5.4, p. 629.” State v. Drummy, supra, 308-309. The necessity defense “ ‘traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.’ United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980).” State v. Drummy, supra, 309. “[Mjodern cases have tended to blur the distinction between duress and necessity.” United States v. Bailey, supra; In re Juvenile Appeal, supra. “More significantly, most ... of the modern recodifications (following the Model Penal Code in this respect) contain a broader choice-of-evils defense which is not limited to any particular source of danger.” W. LaFave & A. Scott, supra, 628. The defense “ ‘deals with obvious and generally recognized harms, not with those which are debatable and, indeed, the subject of legislation and government regulation.’ ” State v. Drummy, supra.

This court, in State v. Drummy, supra, recently adopted a definition of necessity that requires a showing by the defendant: “ ‘(a) that there is no third and legal alternative available, (b) that the harm to be prevented [was] imminent, and (c) that a direct causal relationship [may] be reasonably anticipated to exist between the defendant’s action and the avoidance of harm.’ United States v. Seward, 687 F.2d 1270, 1275 (10th Cir. 1982), cert. denied, 459 U.S. 1147, 103 S. Ct. 789, 74 L. Ed. 2d 995 (1983).”

The trial court erred in holding, pursuant to State v. Zullo, supra, that because the only intent necessary for conviction of a malum prohibitum crime is the intent to do the prohibited act; id., 578; there can be no justification defense to such crimes. Whether in a particular case a necessity defense applies does not turn on whether the defendant had the intent to do the prohibited act. “The rationale of the necessity defense is not that a person, when faced with the pressure of circumstances . . . lacks the mental element which the crime in question requires. Rather, it is this reason of public policy: the law ought to promote the achievement of higher values at the expense of lesser values, and sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.” W. LaFave & A. Scott, supra, 629. Thus, the question of whether the defendant had the requisite intent to commit the crime is irrelevant to a determination of whether the defendant has successfully interposed a necessity defense.

From the transcript it is clear that the defendant’s case at trial and his cross-examination of the state’s witness were geared toward interposing and establishing a justification defense based on the necessity doctrine. “When a defendant . . . seeks to excuse or justify [the] commission [of a crime] so that legal responsibility for the act is avoided, a theory of defense charge is appropriate.” A defendant must, however, assert a recognized legal defense before such a charge will become obligatory. State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). In the context of a court trial, this rule obliges the trier of fact to consider the defendant’s theory of defense, if the court finds that the defendant has produced evidence indicating the availability of a defense recognized under Connecticut law. See id., 707-708.

We hold that the defendant presented sufficient evidence to indicate the availability of the legally recognized necessity defense. We decline to decide, however, whether that evidence relieved him from criminal responsibility in this case. That issue is for the trial court to determine in the first instance, by applying the proper legal principles as articulated in State v. Drummy, supra.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 14-219 (e) (1) provides in pertinent part: “Any person who . . . operates a motor vehicle (1) on a multiple lane, limited access highway at a rate of speed greater than seventy miles per hour . . . shall be fined not less than one hundred dollars nor more than one hundred fifty dollars . . . .”

       The defendant, during oral argument on his motion for judgment of acquittal, admitted that he did “not contest” that he exceeded the speed limit. He also “agree[dj with the state . . . that the state need [not] prove specific intent” to convict a defendant of a speeding violation. Rather, he claimed that “in order to conform to this officer’s identified need to get by him, he had to speed to get out of the lane.”

       We note that the defendant’s use of the term “Hobson’s choice” as a synonym for a choice of evils is inaccurate. The term is derived from the practice of Thomas Hobson (d. 1631), an English liveryman, of requiring each customer to take the next available horse. Thus, in modern usage a Hobson’s choice is “[a]n apparent freedom of choice with no real alternative.” American Heritage Dictionary of the English Language, New College Edition, 626. The defendant does not claim that he was required to take the next available horse, but that he had to choose between two nags.

       Traditionally, the defense of duress excused “ ‘criminal conduct where the actor was under an unlawful threat of imminent death or serious bodily injury, which caused the actor to engage in conduct violating the literal terms of the criminal law.’ ” In re Juvenile Appeal, 184 Conn. 157, 163, 439 A.2d 958 (1981), quoting United States v. Bailey, 444 U.S. 394, 409-10, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980). While duress covered the situation where the coercion had its source in the actions of other human beings, in the defense of necessity, or choice of evils, the source of the coercion was physical forces beyond the actor’s control. Id. This dichotomy has eroded in recent years as courts and other authorities have recognized that “ ‘[t]o restrict the scope of the lesser evils defense to instances of threats from natural forces would be to remove the justification on grounds wholly irrelevant to the question of the actor’s conduct producing a net benefit.’ 2 P. Robinson, Criminal Law Defenses § 124 (e) (1) (1984).” W. LaFave & A. Scott, Substantive Criminal Procedure (1986) § 5.4, p. 628 n.8.

        State v. Rosado, 178 Conn. 704, 425 A.2d 108 (1979), was concerned specifically with defenses set out and defined in chapter 951 of the penal code, namely, General Statutes § 53a-6, ignorance or mistake; § 53a-7, intoxication; § 53a-10, renunciation of criminal purpose; § 53a-13, insanity; § 53a-14, duress; § 53a-15, entrapment; § 53a-16, justification, as defined in General Statutes §§ 53a-17 through 53a-23; §§ 53a-16a and 53a-16b, use of firearms; and § 53a-48, renunciation of criminal purpose in a conspiracy charge. The Rosada court held that “only when evidence indicating the availability of one of the above legally recognized defenses is placed before a jury is a defendant entitled as a matter of law to a theory of defense instruction.” (Emphasis in original.) Id., 708. The court was silent as to whether other common law defenses whose vitality was preserved by § 53a-4 would come under the rule in Rosado. The plain language of that statute, however, indicates that, to the extent that they are consistent with other provisions of chapter 951 of the penal code, common law defenses preserved under § 53a-4 are to be available to defendants to the same extent as the statutory defenses set out in chapter 951. It is therefore appropriate, and consistent with Rosado, that common law defenses preserved under § 53a-4 would come under the Rosado rule.


author: O’Connell, J.

text:
    Glenn N. Bowers v. Warden, Connecticut Correctional Institution, Somers
    (7474)
    Daly, O’Connell and Foti, Js.
    Argued May 18 —
    decision released August 22, 1989

      Michael O. Sheehan, for the appellant (petitioner).

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

The petitioner appeals from the judgment of the trial court dismissing his petition for a writ of habeas corpus. In 1981, the petitioner pleaded guilty to murder in violation of General Statutes § 53a-54a. In 1988, he filed a petition for a writ of habeas corpus.

On appeal, the petitioner contends that his guilty plea was not knowingly, intelligently and voluntarily made (1) because he was not informed of the nature of the charge to which he pleaded, and (2) because he did not understand the mandatory minimum sentence he could receive. We find no error.

We note, at the outset that, “ ‘collateral attacks on judgments are not favored.’ ” Oppel v. Lopes, 200 Conn. 553, 555, 512 A.2d 888 (1986), quoting State v. Wright, 198 Conn. 273, 283, 502 A.2d 911 (1986). In order to prevail in such an attack, the petitioner “must demonstrate a miscarriage of justice or other prejudice and not merely an error which might entitle him to relief on appeal. Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417, reh. denied, 369 U.S. 808, 82 S. Ct. 640, 7 L. Ed. 2d 556 (1962).” D’Amico v. Manson, 193 Conn. 144, 156-57, 476 A.2d 543 (1984). The petitioner must show the existence of a “fundamental defect which inherently results in a complete miscarriage of justice ... an omission inconsistent with the rudimentary demands of fair procedure”; Hill v. United States, supra; or the presence of “ ‘exceptional circumstances where the need for the remedy afforded by the writ of the habeas corpus is apparent.’ ” Id., quoting Bowen v. Johnston, 306 U.S. 19, 27, 59 S. Ct. 442, 83 L. Ed. 455 (1939).

General Statutes § 53a-54a provides that “[a] person is guilty of murder, when, with intent to cause the death of another person, he causes the death of such person . . . .”

In his first claim, the petitioner argues that his guilty plea was not based upon a proper understanding and explanation of the charges against him because the trial court, in its plea canvass, inquired whether he intended to “shoot” the victim, as opposed to whether he intended to “kill” the victim, as required by § 53a-54a.

The petitioner’s arguments presume that this inquiry was his sole source of knowledge of the intent to kill element of murder. This is not the situation. The record before the habeas court disclosed that the petitioner was present when the intent to kill element was explained to the grand jury. He also heard the indictment, which contained that same element, read at both the grand jury and at the plea proceedings. Moreover, the trial court, in its plea canvass, specifically asked the petitioner, “Do you understand that you have been charged with, that is, the crime of murder, and what is involved in the charge itself?” He responded, “Yes, I do.” In addition, the two attorneys who represented the petitioner at the plea proceeding both testified at the habeas trial that they had each explained the elements of the offense to the petitioner before he pleaded guilty. One of them stated that he defined murder to the petitioner as “an intentional killing of a human being.” The habeas court, in its memorandum of decision, found this testimony to be credible.

A habeas court, as well as a trial court, may properly rely on the defense attorney’s representations, as well as the responses of the petitioner at the time he responded to the trial court’s plea canvass, in determining that he was adequately informed of the elements of the offense charged. See State v. Williams, 203 Conn. 159, 170, 523 A.2d 1284 (1987). Thus, in light of the foregoing, this is not a situation where we are precluded from presuming that defense counsel had explained the intent element of murder in sufficient detail to give the petitioner notice of what he was admitting. Oppel v. Lopes, supra, 557; see also, State v. Hackett, 16 Conn. App. 601, 603, 548 A.2d 16 (1988). As a result, we are satisfied that the habeas court properly concluded that the petitioner was adequately informed of the elements of the offense charged and that his guilty plea was knowingly, intelligently and voluntarily made.

In his second claim, the petitioner asserts that his guilty plea was not based upon a proper understanding and explanation of the possible indeterminate sentence to which he was exposed. We disagree.

Pursuant to General Statutes § 53a-35, the crime of murder required the trial court to impose an indeterminate sentence and carried a minimum term of any period not less than ten years nor greater than twenty-five years and a maximum term of life imprisonment. There was no plea agreement in this case and the trial court sentenced the petitioner to seventeen years to life.

The transcript of the trial court’s plea canvass discloses that it asked the petitioner if he was aware of the possible range of penalties for the offense charged and if his attorney discussed those possible penalties with him. The petitioner responded affirmatively. The trial court then told the petitioner that the mandatory minimum sentence was ten to twenty-five years and the maximum would be life. The petitioner unequivocally acknowledged that he was aware of his exposure under the sentencing statute.

The petitioner testified at the habeas trial that he did not understand at the time of pleading guilty that he was exposed to a minimum mandatory sentence of ten years to life imprisonment. Rather, he believed he was exposed to a minimum sentence of ten to twenty-five years. As a result, he argued that the trial court’s canvass was deficient because it failed to indicate that any sentence under § 53a-35 required life imprisonment as an essential component.

The habeas court disagreed with the petitioner’s theory and ruled that the trial court’s explanation of the range of the petitioner’s exposure was legally correct. We agree. The trial court’s explanation was unambiguous. The petitioner would have this court distort that clear language to reach a result in his favor. We will not do so.

There is no error.

In this opinion the other judges concurred.

       The following colloquy transpired after the prosecution read a statement of facts surrounding the shooting:
      “The Court: Mr. Bowers, do you agree with the facts that the state’s attorney has just related to the court?
      “[Defense Counsel]: Okay, tell the judge that you shot him four times.
      “The Defendant: I believe it was four times that I shot him and them statements that he have, I disagree with that.
      “[Defense Counsel]: But did you shoot the victim?
      “The Defendant: Yes, I did.
      “The Court: All right. And when—
      “[Defense Counsel]: Did you shoot him with a gun?
      “The Defendant: Yes, I did.
      “Defense Counsel: Did you shoot him at least three times?
      “The Defendant: Yes.
      “The Court: And when you aimed the gun, did you intend to shoot him?
      “The Defendant: Yes.
      “The Court: All right. So that you do admit that you did commit the crime of murder?
      “The Defendant: Yes, I do.”

       The petitioner pleaded guilty to the crime of murder, a class A felony. General Statutes § 53a-35 provides in pertinent part: “IMPRISONMENT for ANY FELONY COMMITTED PRIOR TO JULY 1, 1981: INDETERMINATE SENTENCES; maximum AND MINIMUM terms, (a) For any felony committed prior to July 1, 1981, the sentence of imprisonment shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d).
      “(b) The maximum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, life imprisonment . . . .”
      “(c) Except as provided in subsection (d) the minimum term of an indeterminate sentence shall be fixed by the court and specified in the sentence as follows: (1) For a class A felony, the minimum term shall not be less than ten nor more than twenty-five years . . . .”

       The following colloquy transpired between the trial court and the defendant:
      “The Court: All right. Now, Mr. Bowers, are you aware of the possible range of penalties for this offense of murder? “The Defendant: Yes, I am.
      “The Court: All right. And has your attorney discussed that with you, what the penalties could be?
      “The Defendant: Yes.
      “The Court: And are you aware of the mandatory minimum sentence for this offense, which would be ten to twenty-five years or a maximum of life?
      “The Defendant: That’s the minimum?
      “The Court: The minimum would be ten to twenty-five years?
      “The Defendant: Oh, okay.
      “The Court: The maximum would be life. Are you aware of that?

      “The Defendant: Yes.” (Emphasis added.)


author: Spallone, J.

text:
    State of Connecticut v. Thomas Darby
    (6787)
    Spallone, Daly and Jacobson, Js.
    Argued April 4 —
    decided June 7 —
    decision released July 26, 1989

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

      Carolyn K. Longstreth, deputy assistant state’s attorney, with whom were Patrick Clifford, assistant state’s attorney, and, on the brief, Michael Dearington, state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of five counts of risk of injury to a child, General Statutes § 53-21, and of one count of sexual assault in the second degree, General Statutes § 53a-71 (a) (l). The question presented for our determination is whether the trial court’s ruling permitting the victims, all of whom were then under the age of twelve, to testify by way of videotapes made in the absence of the defendant and the jury violated the defendant’s state and federal constitutional rights to confront his accusers and to due process of law.

Prior to trial, the state moved, pursuant to General Statutes § 54-86g, to present the testimony of all of the young victims by means of a videotape. The state represented that all of the victims were twelve years of age or younger and that the charges against the defendant involved sexual abuse, and proposed that only the judge, the prosecutor, one defense counsel and any person who would contribute to the welfare of the child be present during the testimony. Further, the motion proposed that the proceedings be videotaped from an adjoining room through a one-way mirror while the defendant was situated in a separate monitoring room, where he would be able to see and hear the testimony and to communicate with defense counsel electronically.

At a hearing held on the state’s motion, the only person to testify was John Leventhal, a pediatrician, who at the time of the hearing had been associated with the department of pediatrics at Yale-New Haven Hospital for eight years and had served as the director of its child abuse committee for four to five years.

Following the hearing, the trial court granted the state’s motion and ordered that all of the victims’ testimony be presented to the jury via videotape. The case proceeded to trial, and the victims’ testimony was presented to the jury solely by way of videotapes.

After the jury returned its verdicts in this case, but before sentencing, our Supreme Court handed down its decision in State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988). In Jarzbek, our Supreme Court held that, in criminal prosecutions involving the alleged sexual abuse of children of tender years, videotaping the testimony of a minor victim outside the physical presence of the defendant may, under certain circumstances, be a constitutionally permissible practice that is not violative of the defendant’s rights under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. Id., 707. The court held that, when faced with a request by the state to present the testimony of a minor victim by way of videotape,'the trial court must hold an evidentiary hearing to assist it in balancing the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim. Id. The state has the burden of demonstrating, by clear and convincing evidence, a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony. In order to satisfy its burden of proving compelling need, the state must show that “the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question.” Id., 704-705. Although the trial court may consider the well-being of the witness as a significant factor in its analysis, the state cannot prove need simply by demonstrating that the victim would suffer some harm if forced to testify in the presence of the accused. The primary focus of the trial court’s inquiry must be on the reliability of the minor victim’s testimony, not on the injury that the victim may suffer by testifying in the presence of the accused. Id., 705.

Following the release of the opinion in Jarzbek, the defendant filed a motion for mistrial and a motion for a new trial or in arrest of judgment. The defendant claimed that the evidence produced at the hearing on the state’s pretrial motion to videotape the testimony of the minor victims did not establish, by clear and convincing evidence, a compelling need to present the minor victims’ testimony by way of a videotape made in the defendant’s absence. At the sentencing of the defendant, the trial court denied the defendant’s motions for a mistrial and for a new trial or in arrest of judgment, ruling that the evidence presented met the test of Jarzbek Thereafter, the defendant filed this appeal. Subsequently, in response to the state’s motion for articulation, the trial court stated: “(1) In ruling after trial that the standard set forth in State v. Jarzbek, [supra] was satisfied, the trial court specifically considered only the testimony presented in connection with the pretrial motion to videotape. Although the court was aware of all the evidence presented during the trial pertaining to that issue, the court was not requested to consider, and did not specifically consider, that evidence. With the exception of oral argument by counsel for the defendant concerning trial evidence, the posttrial hearing and ruling were directed to the pretrial hearing evidence. (2) The court did conclude as to the victims . . . that the defendant’s presence during the testimony would have so inhibited each victim that the reliability of his testimony would have been seriously undermined. All the facts and inferences relied on for that determination were recited by the court in ruling on the pretrial motion. The basis for the decision on the pretrial motion to videotape was stated fully by the court at that time.”

In essence, the claim of error advanced by the defendant is a question of the sufficiency of the evidence to support the trial court’s conclusion that the standards enunciated in Jarzbek were satisfied with regard to the videotaped testimony of each victim. Such a determination is a question of fact to be made by the trial court. State v. Jarzbek, supra, 704. In this case, the trial court expressly articulated its finding that the defendant’s presence during the testimony would have so inhibited each victim that the reliability of his testimony would have been seriously undermined. At the sentencing proceeding, the court indicated it was satisfied that “there was a compelling need for videotaping in this case.”

Because the trial court made the findings mandated by Jarzbek, our review is limited to determining whether there is any evidence to support those findings. We adopt the position of our Supreme Court in Jarzbek, wherein the court stated: “We express no opinion as to whether the evidence presently on the record is sufficient to satisfy the state’s burden of proving, by clear and convincing evidence, a compelling need to videotape the testimony of the minor victim outside the physical presence of the defendant. It is not the role of this court to make such a factual determination. It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983); State v. Gordon, 185 Conn. 402, 409, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). In the present circumstances, the trial court must determine what of the expert testimony it should reject or accept. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 161, 510 A.2d 440 (1986).” State v. Jarzbek, supra, 706-707. We will not retry the issue of whether there was a compelling need to videotape the victims’ testimony outside the presence of the defendant in order to assure its reliability. On appeal, the function of this court is limited to determining whether the decision of the trial court is clearly erroneous. Practice Book § 4061; State v. Spigarolo, 210 Conn. 359, 374-75, 556 A.2d 112 (1989). It is the province of the trial court to pass upon the credibility of the witnesses and the weight to be accorded the evidence. See State v. Baldwin, 7 Conn. App. 477, 480, 509 A.2d 76, cert. denied, 200 Conn. 808, 512 A.2d 231 (1986). In the evaluation of preliminary determinations of the trial court in a criminal case, the evidence will be construed in a way most favorable to sustaining the determination. State v. Spigarolo, supra, 375.

Our review of the transcript of Leventhal’s testimony reveals that, although there are general references to the effect that young victims of sexual assault are emotionally traumatized by having to testify in a courtroom setting in the presence of the accused abuser, Leventhal also testified that such a setting would have a negative effect on each individual victim’s ability to testify in a trustworthy manner. Leventhal testified that he had personally interviewed two of the children and reviewed the hospital charts of the others. He stated his opinion that all of the victims would be “much more likely” to give a more complete and accurate account of what had happened to them if they were to testify outside the presence of the accused and the jury, in a room other than a courtroom. We cannot say that the factual finding of the trial court in this case, that there existed a compelling need to videotape the victims’ testimony, was clearly erroneous.

We are not limited, however, to reviewing only the evidence before the trial court at the time of the ruling. Because the defendant’s fundamental constitutional right to confront the witnesses against him is implicated, we may consider all the evidence in the record. See Practice Book § 4061; State v. Zindros, 189 Conn. 228, 238, 456 A.2d 288 (1983), cert. denied, 465 U.S. 1012, 104 S. Ct. 1014, 79 L. Ed. 2d 244 (1984). Our Supreme Court has specifically stated that, “[i]n determining whether the defendant’s constitutional rights have been infringed, we are not limited to the evidence before the trial court at the time of the ruling but may review the record in its entirety.” State v. Doehrer, 200 Conn. 642, 647, 513 A.2d 58 (1986). When conducting such review, we are not restricted solely to reviewing the expert testimony on this issue, but may consider the relevant testimony of lay witnesses as well. State v. Spigarolo, supra, 372. “[T]he testimony of such individuals [lay witnesses] may provide critical insight on a minor’s ability or inclination to speak truthfully in the physical presence of an alleged perpetrator.” Id. Our review of the entire record as to each individual child victim fully supports the trial court’s findings that a compelling need existed to videotape the testimony of each of them, outside the physical presence of the accused, in order to assure the reliability of their testimony.

In a related claim, the defendant asserts that the trial court erred in not affording defense counsel an opportunity to meet privately with each victim. He cites State v. Jarzbek, supra, 705 n.10, in support of this argument.

As a general rule, witnesses are not required to meet with defense counsel. Nor is the state affirmatively required to make its witnesses available to defense counsel. The state’s duty is to refrain from actively interfering with defense counsel’s access to witnesses who are otherwise willing to meet with defense counsel. 1 ABA Standards for Criminal Justice (2d Ed.) § 3.3.1; see also United States v. Murdock, 826 F.2d 771, 773 (8th Cir. 1987); United States v. Black, 767 F.2d 1334, 1337-38 (9th Cir. 1985), cert. denied, 474 U.S. 1022, 106 S. Ct. 574, 88 L. Ed. 2d 557 (1985). Our rules of practice are consistent with these principles. Practice Book § 791 permits depositions of witnesses in criminal cases only where a witness is likely to be unavailable for trial. Indeed, before trial, defense counsel is not even entitled to the statements of state’s witnesses that were given to law enforcement authorities, unless of course, they are exculpatory. See Practice Book §§ 746 (2), 741 (1), 751.

We do not believe the Jarzbek majority intended to alter the rules of discovery in criminal cases by conferring an unlimited right on defense counsel to compel a pretrial meeting with the state’s witnesses, particularly child victims of sexual abuse. The court’s remark, when construed in the light of long and well established rules governing discovery in criminal cases, is more properly read as a reminder by the court that, even when child victims are to be videotaped at a time and place removed from the remainder of the trial, the defendant must be afforded the same opportunity for meeting with such witnesses as otherwise exists under our rules of practice.

In any event, the record in this case fails to indicate whether the defendant asked to meet with the victims before they testified, whether the victims were willing to be interviewed by defense counsel and, if so, whether the state interfered with such a meeting. Neither the record in this case nor the applicable law supports this claim of error.

In summation, the record, including the expert testimony produced at the hearing on the state’s motion to videotape, the testimony of lay witnesses admitted during trial, the rulings of the trial court on the state’s motion to videotape and the defense motions for a mistrial or a new trial or in arrest of judgment, and the trial court’s articulation, fully support the trial court’s factual finding that, under the “tests and standards” of Jarzbek, a compelling need existed to videotape the testimony of the child victims outside the presence of the defendant, in order to assure the reliability of such testimony. The trial court’s factual findings cannot be said to be clearly erroneous, and its rulings complied with applicable law.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing morals OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       “[General Statutes] Sec. 53a-71. sexual assault in the second degree: class c felony: nine months not suspendable. (a) A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age, or (2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.
      “(b) Sexual assault in the second degree is a class C felony for which nine months of the sentence imposed may not be suspended or reduced by the court.”

       “[General Statutes] Sec. 54-86g. testimony of victim of child abuse. COURT MAY ORDER TESTIMONY TAKEN OUTSIDE COURTROOM. PROCEDURE. (a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. The attorneys and the judge may question the child. The defendant may observe and hear the testimony of the child and may consult with his attorney, but the court shall ensure that the child cannot hear or see the defendant.
      “(b) If the court orders the testimony of a child to be taken under subsection (a) of this section, the child shall not be required to testify in court at the proceeding for which the testimony was taken.”

       We note that the trial court had before it, in addition to the testimony of Leventhal, the arrest warrants relating to the defendant in this case. The warrants described the actions of the defendant and the fearful reactions of the victims.

       The remarks of the trial court with regard to its ruling on the state’s motion pursuant to General Statutes § 54-86g were as follows:
      “The Court: Well, first of all, essentially, I agree with Mr. Clifford’s interpretation of the statute and, that is, the legislature appears to have already performed the factor of the balancing test. It determined that the court need not perform a balancing of the defendant’s interests versus the victims’ interests and so on. The only requirement is for the court to order the testimony to be taken in a closed setting to determine that there is a criminal prosecution, that the offense involved is assault, sexual assault or abuse of the child, and that the child victim in any of those cases is twelve years of age or younger. If those factors are met, the court may exercise its discretion without evidence, without any specific findings, without any balancing of rights. The court, obviously, need only be persuaded that it is appropriate in a particular case. And I suppose that is essentially a determination that somehow the judicial process will be better served if the testimony of the victims is taken in that contrived way. The court, obviously, may also consider whether or not there will be any adverse impact on the victims because the focus of the statute certainly seems to be to protect the victims or to enhance the likelihood that they will testify accurately and completely. I think that the court would be free to simply enter a decision without stating reasons, because the legislature has not required any. But I would certainly prefer to do that. And I think the reasons why both of those tests are met, why the court is persuaded that judicial process would be better served in this case by the procedure requested by the state, and further, that there is risk of some adverse impact on the victims, those conclusions are based on taking judicial notice of the warrant and on Dr. Leventhal’s testimony. Clearly, all the children are under twelve years of age now and, obviously, were at the time when all these acts were alleged to have occurred. Clearly, it is apparent from the warrant and from the doctor’s testimony that the defendant stood, according to those allegations, in some sort of position of friendship and trust or confidence with the victims and their families. I think the court can infer from that the victims would have some ambivalent feelings at best about the defendant. There were threats, apparently, from the warrant, and attempts on particular dates on at least two of the victims. And I note that one of the children was crying when he was telling about the version of the facts as he understood them. The doctor has testified that there is a significant risk of injury to children in this age group from testifying in a regular court setting, and that there is a greater likelihood of the victims in this age group to testifying accurately and completely in a closed setting rather than in a regular courtroom setting. I think the court can virtually take judicial notice of the fact that a child in this age group would be more relaxed and comfortable and less intimidated and overwhelmed in a controlled setting outlined in the state’s motion than in a regular court setting with a jury of eight people and possible spectators, attorneys, investigators, court stenographer, and the judge sitting in a robe on a bench above the witness, and that kind of setting would be intimidating to a child in this age group. For all those factors, all those reasons, the facts in the warrant, and so on, and the inferences that can be drawn from those, plus Dr. Leventhal’s testimony specifically about two of the victims and about the others, by reason of reviewing their charts, the court concludes that there is a greater likelihood in this case that all the victims would be giving a more accurate and complete testimony if they were to do it in a closed setting, and there is a significant risk of emotional injury to the children if they were to attempt their testimony in a regular courtroom setting. So, the court is persuaded that the preferable procedure in this case is to have the testimony of the victims given in the setting outlined in the state’s motion, that is, the controlled setting by means of a videotape. For all those reasons, the state’s motion is granted.”

       The trial court ruled as follows:
      “The Court: Well, at the time of the hearing on the videotaping, obviously we were operating without the benefit of knowing what guidelines our Supreme Court would establish in Jarzbek. However, realizing that there were not clear guidelines at that point in the statute, I did attempt to ask some additional questions which satisfied the court that there was a compelling need for videotaping in this case. I feel that the evidence that was presented would meet the test of Jarzbek, even though we didn’t know specifically what test we were trying to meet at that point. For those reasons, the court will deny the motion for mistrial and the motions for a new trial. And I realize that this matter will probably be tested in the appellate courts. However, I think that it will meet Jarzbek.”

        In State v. Jarzbek, 204 Conn. 683, 705 n.10, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), our Supreme Court noted that, “[i]f, after an evidentiary hearing, the trial court finds a compelling need to exclude the defendant from the witness room during the taping of a minor victim’s testimony, defense counsel must be afforded a full opportunity, prior to the videotaping session, to meet privately with the victim in order to discuss the events in question.”


text:
    Otis T. Bradley’s Appeal from Probate
    (6884)
    (6885)
    Borden, Daly and Foti, Js.

      Argued February 1 —
    decision released August 29, 1989

      Augustus R. Southworth III, with whom was Mark W. Dost, for the appellant (plaintiff).

      William C. Franklin, for the appellees (defendant Patricia P. Smith et al.).
   Borden, J.

In these combined cases the plaintiff appeals from the judgments of the trial court dismissing his appeals from the Probate Court. The plaintiff was the named executor of the estate of the decedent, Ruth J. Robbins. The defendants were numerous nieces and nephews of the decedent, three of whom, Patricia P. Smith, Jennifer Place, and Ruth Carr, brought the motions to dismiss the plaintiff’s appeals from probate. The plaintiff claims that the trial court erred (1) in failing to take as true, for the purpose of deciding the motions to dismiss, the allegations of aggrievement contained in the plaintiff’s motions to appeal, (2) in finding that the issues in one of his appeals from certain orders of the Probate Court were moot, and (3) in finding that the plaintiff was not aggrieved by the Probate Court’s decree assuming jurisdiction over the estate and its decree appointing Howard C. Carr as executor in the plaintiff’s stead. We find error in part.

Although the plaintiff filed two separate appeals in the trial court from separate orders of the Probate Court, the Probate Court orders all derived from the same probate estate, and the defendants’ motions to dismiss the two appeals from probate were decided together by the trial court. We therefore consider the trial court’s rulings and the plaintiff’s claims of error together, as applying to the sole probate estate involved in this case.

The plaintiff’s first appeal was from the Probate Court’s orders granting temporary administration of the decedent’s estate to the First National Bank of Litchfield, finding that the decedent was domiciled in Connecticut when she died, and, as an alternate basis of jurisdiction, accepting jurisdiction over the decedent’s estate pursuant to General Statutes § 45-170. The plaintiff’s second appeal was from the Probate Court’s orders admitting the decedent’s will to probate and appointing Carr as executor of the decedent’s estate.

The defendants moved to dismiss the first appeal for lack of subject matter jurisdiction on the bases (1) that the plaintiff was not aggrieved, and (2) that subsequent actions of the plaintiff and the Probate Court rendered the decrees appealed from to be moot. The defendants moved to dismiss the second appeal for lack of subject matter jurisdiction on the basis that the plaintiff was not aggrieved by the decision of the Probate Court. Both motions to dismiss were accompanied by a memorandum of law alleging the facts on which the defendants relied for their claims of lack of aggrievement and mootness, and offering legal analysis based on those alleged facts.

The plaintiff filed a memorandum of law in opposition that alleged facts and offered legal analysis in support of his factual version of events. Some of the facts he alleged were substantially similar to some of the facts alleged by the defendants. Other facts were not admitted or were squarely disputed. The matter was heard at short calendar, where no testimony was taken but some documentary evidence was submitted to the court.

In a consolidated memorandum of decision on both motions to dismiss, the trial court found the following facts. The decedent resided in Litchfield from February, 1985, until her death on March 15, 1987. Shortly after her death, her niece, the defendant Patricia P. Smith, filed an application for probate of a will executed by the decedent. Smith submitted the original document to the Probate Court for the district of Litchfield. The will named the plaintiff, Otis T. Bradley, as executor and as a trustee of certain trusts created under the will for the benefit of his children by Smith, who was his former wife. The plaintiff is not a beneficiary under the will.

The Probate Court scheduled a hearing on May 6, 1987, to act on the application to admit the will to probate. The plaintiff appeared through counsel “for the limited purpose of contesting jurisdiction.” The plaintiff argued that the Probate Court was without jurisdiction to probate the estate. The Probate Court did not reach a decision on the issues at the hearing, and the matter was continued until June 17, 1987.

The trial court further found that subsequent to the hearing on May 6, 1987, the plaintiff filed in the Surrogate’s Court of New York County, New York, an application to admit a copy of the will to probate and to have himself appointed as preliminary executor of the estate. The New York court granted him preliminary letters testamentary on the decedent’s estate on May 19, 1987. On June 17, 1987, the Probate Court scheduled a hearing to determine whether the court had jurisdiction to probate the estate. At this hearing, the plaintiff through counsel contested jurisdiction. By decree dated June 17, 1987, the Litchfield Probate Court concluded that it had jurisdiction pursuant to General Statutes § 45-170 (a). See footnote 1, supra.

The trial court also found that on June 29, 1987, Smith had submitted an amended application for probate of the will, seeking the appointment of Howard C. Carr as executor in lieu of the appointment of the plaintiff. The ninth article of the will provided that “[i]f [Otis T. Bradley] fails to qualify or ceases to remain in office, I appoint my friend, Howard C. Carr, executor in his place.” The trial court further found that on August 12, 1987, the plaintiff had appeared and agreed that the will could be admitted to probate, but that he had objected to the appointment of Carr as executor in his stead. On August 12, 1987, the Probate Court admitted the will to probate and appointed Carr as executor, finding the plaintiff unqualified to act as executor due to a conflict of interest.

The trial court concluded that the order of the Probate Court appointing a temporary administrator was moot, and that the plaintiff was not aggrieved by the other orders of the Probate Court. The court therefore granted the defendants’ motions to dismiss. These appeals followed.

I

The plaintiff first claims that the trial court erred by not taking as true the factual allegations in his motions for appeal when it decided the defendants’ motions to dismiss. We disagree.

The plaintiff bases this claim on Park Construction Co. v. Knapp, 150 Conn. 588, 591-92, 192 A.2d 635 (1963), where the court discussed the difference between a motion to erase and a plea in abatement under our prior practice, and held that a motion to erase an appeal reached only defects appearing on the face of the record and had to be decided on the record alone. The plaintiff argues that because the prior motion to erase was supplanted by the motion to dismiss; Practice Book § 143; the Park holding, which concerned motions to erase, is still viable and is applicable to motions to dismiss.

This argument fails for several reasons, all of which follow from the fact that the prior motion to erase and the present motion to dismiss differ in several important aspects. A motion to dismiss is used to assert jurisdictional flaws that appear on the record or that are alleged by the defendant in a supporting affidavit “as to facts not apparent on the record.” Practice Book § 143. The motion to erase, on the other hand, reached only defects apparent on the face of the record. Park Construction Co. v. Knapp, supra. In that respect, the motion to erase served “the same purpose as a demurrer”; id.; and the demurrer has been replaced by the motion to strike. Cavallo v. Derby Savings Bank, 188 Conn. 281, 283, 449 A.2d 986 (1982).

The plaintiff contends that the trial court, in deciding a motion to dismiss an appeal from probate on the ground of aggrievement, should have assumed the truth of the allegations in the motion to appeal, and decided only the narrow question of whether those facts were legally sufficient to constitute aggrievement. That procedure, however, is appropriate not for a motion to dismiss, but for a motion to strike. Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 513 n.3, 429 A.2d 967 (1980). In the present case, “the question before the trial court was whether, as a matter of fact, the plaintiff was aggrieved, a precondition to the right of appeal and the jurisdiction of the Superior Court.” Id., 513. The trial court’s consideration of this motion was not limited to facts appearing on the face of the record; Practice Book § 143; and, accordingly, under the circumstances of this case, the court was not obliged to assume the truth of the plaintiff’s factual allegations in the motion to appeal. See Merrimac Associates, Inc. v. DiSesa, supra, 513-17.

II

We next turn to the plaintiff’s claim that the trial court erred in determining that the issues in his first appeal from probate were moot. We agree with the trial court that the probate order appointing a temporary administrator was moot. We also agree with the plaintiff, however, that the trial court erred in determining that the plaintiff’s challenge to the Probate Court’s acceptance of jurisdiction under General Statutes § 45-170 (a) was moot.

We first consider the mootness of the appointment of a temporary administrator. On June 9,1987, the Probate Court appointed the First National Bank of Litchfield as temporary administrator. The plaintiff appealed this decree to the Superior Court on July 31. It is undisputed that on August 12,1987, the Probate Court found Carr qualified as executor, and that six days later the bank submitted a notarized resignation as temporary administrator. In its resignation, the bank represented to the court that “[n]o funds or property of any kind were transferred to said First National Bank of Litchfield as temporary administrator.”

The plaintiff maintains that the issue of the bank’s appointment as temporary administrator is not moot because the bank has not yet filed a formal sworn accounting pursuant to General Statutes § 45-263 (b). Because the bank has not yet accounted, the plaintiff argues, there exists a possibility that the bank has interfered with the plaintiff’s administration of the estate, thus burdening the estate with undue expenses.

The plaintiff does not dispute the bank’s assertion that no estate assets passed through its hands. Rather, the plaintiff rests his argument on the virtually nonexistent possibility that a sworn accounting by the bank would reveal some as yet unknown “interference” by the bank with the plaintiff’s administration of the estate. Even if we were to take this possibility seriously, the plaintiff’s argument is legally unsound. Contrary to the plaintiff’s assertion, the responsibilities of a temporary administrator upon resigning are not defined in General Statutes § 45-263, which concerns the resignation or removal of fiduciaries generally. Rather, the powers and duties of temporary administrators are specifically set forth in General Statutes § 45-249d. The specific provisions of this section take precedence over the more general provisions of § 45-263. See Healey v. Freedom of Information Commission, 18 Conn. App. 212, 217, 557 A.2d 561 (1989).

The plaintiff’s argument, namely, that the bank’s resignation is ineffective until the bank has accounted, is drawn from the language of § 45-263 (b), which governs the resignation of fiduciaries. No such requirement exists in § 45-249d (e). Section 45-249d (e) requires merely that, upon the qualification of an executor, the temporary administrator “shall exhibit forthwith to the court an account of his trust and deliver to the . . . executor ... all of the estate of the deceased remaining in his hands.” Thus, the termination of the temporary administrator’s fiduciary power over the estate is not contingent upon the production of an accounting, but automatically terminates upon the qualification of the executor. Id. All that remains for the temporary administrator to do after an executor is qualified is to exhibit an accounting to the court and to deliver any estate assets in his possession to the executor. If there are no assets and nothing to account for, the temporary administrator has fulfilled its duties by filing an appropriate document with the Probate Court so indicating.

“This court may decide a case only when it presents a live controversy which can be resolved by relief that is within the court’s power to grant.” Schroeter v. Salvati, 6 Conn. App. 622, 623, 506 A.2d 1083 (1986). The plaintiffs appeal of the appointment of the bank as temporary administrator fails this test. Even if we were to find that the bank’s appointment somehow constituted error, the bank’s legally valid resignation deprives this court of the ability to order any practical relief. The plaintiff’s appeal from the order of the bank’s appointment is moot.

We turn, therefore, to the claim of the plaintiff that the trial court erred in determining that the issue of the Probate Court’s assumption of jurisdiction under General Statutes § 45-170 (a) was moot. The propriety of the trial court’s determination of mootness of this claim hinges on the validity of the trial court’s finding that “[o]n August 12,1987, the plaintiff appeared and agreed that the will could be admitted to probate; however, the plaintiff objected to the appointment of Howard C. Carr in his stead.” If in fact the plaintiff had consented to the admission of the will under General Statutes § 45-170 (a), arguably he could not later be heard to challenge that admission on appeal. We conclude, however, that the court’s finding cannot stand because the peculiar procedural presentation of the case in the trial court left that finding without an evidential basis.

As we noted above, the defendants’ motions to dismiss were presented to the court pursuant to factual and legal memoranda of the parties. Although the plaintiff did not file a transcript of the trial court proceedings, we were informed in oral argument in this court that the defendants introduced copies of certain Probate Court documents but that no testimony was heard by the trial court. Those documents do not support the court’s finding that the plaintiff consented to the admission of the will under § 45-170 (a).

Ordinarily, the failure of an appellant to produce an adequate record — in this case, a transcript of the trial court proceedings — precludes him from challenging on appeal a factual determination of the trial court. Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn. App. 396, 402, 541 A.2d 519 (1988). Two considerations lead us, however, to excuse the plaintiff from the consequences of that rule. First, in the trial court it was the defendants who asserted the factual bases of their mootness claims, and thus they had the obligation to file “supporting affidavits as to facts not apparent on the record.” Practice Book § 143. Instead, their memorandum simply recited a number of facts, some of which were disputed by the plaintiff. Second, it is clear from the record that the court resolved a critical disputed fact — namely, whether the plaintiff consented to the admission of the will under General Statutes § 45-170 (a) — solely by reference to the two competing memoranda, and not by an evidentiary hearing.

“It is fundamental that when issues of fact are disputed, due process requires an evidentiary hearing, with the opportunity to present evidence and cross-examine witnesses. Nelson v. Nelson, 13 Conn. App. 355, 367, 536 A.2d 985 (1988); Lampasona v. Jacobs, 7 Conn. App. 639, 642-43, 509 A.2d 1075 (1986). Here, the court made a . . . critical factual [finding] based only on the briefs of the parties, supplemented by” the documents submitted to it. Land Enterprises, Inc. v. Dorman, 17 Conn. App. 4, 11-12, 549 A.2d 672 (1988). Accordingly, that finding cannot stand.

Ill

We next address the plaintiffs final claim, that the trial court erred in finding that the plaintiff is not aggrieved by the Probate Court’s decree assuming domiciliary jurisdiction and its decree appointing Carr executor instead of the plaintiff. We examine these claims in turn.

“To prosecute an appeal from a Probate Court decree, the plaintiff must be aggrieved by that decree. General Statutes § 45-288.” Zempsky’s Appeal from Probate, 6 Conn. App. 521, 524, 506 A.2d 1050, cert. denied, 200 Conn. 808, 512 A.2d 231 (1986). “[T]he existence of aggrievement depends upon ‘whether there is a possibility . . . that some legally protected interest which [an appellant] has in the estate has been adversely affected.’ O’Leary v. McGuinness, 140 Conn. 80, 83, 98 A.2d 660 (1953).” Merrimac Associates, Inc. v. DiSesa, supra, 516. The trial court determines the existence of aggrievement as a matter of fact. Id., 513.

The plaintiff claims that he is aggrieved in his capacity as executor of the estate, as trustee of certain residuary trusts established under the will and as a creditor of the estate. The plaintiff’s several theories of aggrievement all proceed from the same alleged harm, namely, the additional expense and inconvenience caused by the duplicative probate administration of the estate in New York and in Connecticut.

“We must determine whether, under the facts found, the plaintiff had an interest in the proceedings below sufficient to confer upon [him] standing under General Statutes § 45-288.” Id., 517. We first address the plaintiff’s claim of aggrievement concerning the Probate Court’s decree assuming jurisdiction over the estate.

In its memorandum of decision on the defendants’ motions to dismiss, the trial court found that the dual administration of the estate arose from “the plaintiff’s unilateral action in instituting proceedings in New York . . . despite the pending proceeding in . . . Connecticut.” The court held that the plaintiff “may not now rely solely upon the duplication of administration and appointment as his basis for aggrievement,” when “the problems of duplication of administration and appointment were created by the plaintiffs instituting proceedings in New York.”

We cannot sustain the trial court’s decision as it relates to the appeal of the probate decree asserting jurisdiction over the estate. That the plaintiff instituted a probate proceeding in New York is irrelevant to the issue of whether he was aggrieved by the action of the Connecticut Probate Court. The possibility that the Probate Court’s decree adversely affected “some legally protected interest which [the plaintiff] has in the estate”; id., 516; is not reduced or eliminated by the plaintiff’s instituting a probate proceeding in New York. In the absence of a claim that the plaintiff s action in New York, based on his belief of the decedent’s domicile there, lacked any colorable basis, we see no justification for barring him from challenging probate jurisdiction here simply because he asserted it there. To rule otherwise would make aggrievement turn on a race to the respective courthouses.

We last turn to the plaintiffs claim that the trial court erred in concluding that he was not aggrieved by the Probate Court’s decree appointing Carr executor of the estate. We agree.

The plaintiff claimed aggrievement, in his capacity as preliminary executor appointed by the New York Surrogate’s Court, by Carr’s appointment as executor in Connecticut. The plaintiff claimed in his motion for appeal to the trial court that Carr’s appointment “will result in two different fiduciaries, having been appointed by different courts in different states, taking steps to assemble, administer, and control the assets of the Decedent’s estate and to take all other steps required in settling the Decedent’s estate.” This dual administration, the plaintiff claimed, would cause the estate significantly greater expense and delay.

The trial court found that the plaintiff was not aggrieved by Carr’s appointment. The court relied upon Avery’s Appeal, 117 Conn. 201, 167 A. 544 (1933), which held that an executor may not appeal from a decree removing him as fiduciary, because the removal decree, which is not vacated by the appeal, terminates his representative capacity, and he is not aggrieved, except in feelings, in his individual capacity. The trial court in this case, finding that the plaintiff had never been appointed executor in Connecticut, read Avery’s Appeal to say that one whose only interest in an estate is in being named executor is not aggrieved by a decree appointing someone else to that position. See also Zempsky’s Appeal from Probate, supra, 525. Were the plaintiff’s sole basis for aggrievement his personal desire to be named the executor, the trial court’s analysis would be correct.

The court’s finding that the plaintiff could not have been aggrieved in any fiduciary capacity by the Probate Court’s decree because he had never been appointed to such a capacity, however, stands in direct contradiction to the fact that the plaintiff was appointed preliminary executor of the estate in New York. Thus, the plaintiff appeared in the Litchfield Probate Court vested with a fiduciary capacity that was not within the power of the Litchfield Probate Court to revoke. Avery’s Appeal, supra, is therefore inapposite to today’s case. “ ‘[PJersons as to whom a right of appeal is recognized are those who are acting in a fiduciary or representative capacity under a subsisting appointment which has not been terminated, by revocation or otherwise, and who therefore are under present duty to protect the estate from diversion. Smith v. Sherman, 58 Mass. 408 [1819].’ (Emphasis added.) Avery’s Appeal, supra, 204-205.” Zempsky’s Appeal from Probate, supra. By virtue of his capacity as executor in New York, the plaintiff was aggrieved by the decree appointing Carr executor in Connecticut.

There is error in each appeal, the judgment is set aside and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       In general, General Statutes § 45-170 (a) provides that a Connecticut Probate Court may probate the will of a testator who was not domiciled in Connecticut at her death if the testator last resided in the probate district, if any of the testator’s property or bank accounts are situated there, if any of the named executors or trustees reside or have an office there, if any cause of action of the testator arose there or if any debtor of the testator resides or has an office there. See General Statutes § 45-170.

       Although the trial court found only that the plaintiff “asserts that” he was so appointed, at oral argument in this court the defendants did not dispute the fact of the plaintiff’s appointment in New York.

       General Statutes § 45-263 (b) provides: “resignation of fiduciary. The court of probate, after notice and hearing, may accept or reject the written resignation of any fiduciary, but such resignation shall not be accepted until such fiduciary has fully and finally accounted for the administration of his trust to the acceptance of such court.”

       General Statutes § 45-249d provides in pertinent part: “powers and DUTIES OF TEMPORARY APPOINTEE. REMOVAL. ACCOUNT, (a) The temporary administrator or officer appointed pursuant to the provisions of section 45-249c shall take immediate possession of all the real and personal property of the deceased, collect the rents, debts and income thereof and do any additional acts necessary for the preservation of the estate that the court authorizes.
      “(b) Such administrator or officer may be authorized by the court to sell any personal property of the estate which is perishable in its nature or which the court finds cannot be retained to advantage, and may be further authorized to make up or complete any stock or materials in an unfinished state, and to continue any business, so far as may be necessary for the preservation of the same.
      “(c) Such administrator or officer shall file forthwith under oath an inventory of all personal property of the deceased and, when ordered to do so, shall exhibit to the court an account of his actions.
      “(d) Such administrator or officer may be removed by the court with or without notice and a successor appointed whenever such action appears to the court advisable.
      “(e) Upon the appointment and qualification of the administrator or the administrator with the will annexed or the qualification of the executor, such temporary administrator or such officer shall exhibit forthwith to the court an account of his trust and deliver to the administrator, executor or administrator with the will annexed all of the estate of the deceased remaining in his hands.”

       In that event, analytically the plaintiff’s claim would be more properly viewed under a lack of aggrievement rather than mootness rubric, but the result — dismissal for lack of subject matter jurisdiction — would be the same, if it were concluded that he lacked aggrievement.

       The defendants’ memorandum asserted, inter alia, that on August 12, 1987, “the Plaintiff through counsel participated in a hearing in which he made no objection to the admission of the will to probate but instead, argued that he rather than Howard C. Carr should be appointed executor. By arguing that the Plaintiff should be appointed as executor he not only rendered moot the question of whether the Probate Court had jurisdiction to administer the estate, he specifically requested that the Probate Court exercise its jurisdiction to appoint him executor under the Will.”
      The plaintiff’s memorandum stated, inter alia, that on August 12,1987, the Probate Court “admitted the will to probate, and found a possible conflict of interest, declined to appoint the [Plaintiff] Executor and instead appointed Defendant Carr as Executor.” It further asserted that the “Court further declined to consider the Plaintiffs written objection and pre-hearing memorandum in support of his objection.” He specifically pointed out that his “willingness to serve as Executor did not constitute a waiver of his position concerning the impropriety of the Court’s acceptance of general jurisdiction over this Estate,” and that he had maintained the position in the Probate Court that any jurisdiction in Connecticut would have been by way of ancillary jurisdiction; see General Statutes § 45-171; rather than under General Statutes § 45-170.

       The plaintiff also claimed that he was aggrieved in his capacity as testamentary trustee of certain trusts created under the will, and as a creditor of the estate. Because we find the plaintiff’s claim of aggrievement in his capacity as executor to be dispositive, we do not address the plaintiffs alternative theories.

       At oral argument in this court, the parties indicated that, despite the dual appointments, the New York proceedings have been stayed, that the administration of the decedent’s estate has proceeded in Connecticut and is nearly completed, and that the testamentary trusts under the will; see footnote 7, supra; would not be established because all of the beneficiaries would soon be beyond the age for termination of any such trust. It may well be, therefore, that the risk of dual administration expenses has evaporated, and that the issues in this case have now become moot. Although we cannot conclusively make that determination from this record or from the representations made to us, that does not preclude the trial court from inquiring further into mootness on the remand.


author: Dupont, C. J.

text:
    Drazen Properties Limited Partnership v. E. F. Mahon, Inc.
    (7377)
    Dupont, C. J., Spallone and Foti, Js.

      Argued June 22 —
    decision released August 29, 1989

      Bernard Green, with whom, on the brief, was Joel Z. Green, for the appellant (plaintiff).

      John W. Colleran, for the appellee (defendant).
   Dupont, C. J.

The plaintiff, Drazen Properties Limited Partnership, sought to recover possession from the defendant of 4000 square feet of real property through this summary process action. The trial court rendered judgment for the defendant, from which the plaintiff appeals. The plaintiff claims that the trial court erred (1) in concluding that the plaintiff was a “successor” within the meaning of General Statutes § 47-19 and, therefore, not entitled to the protection of the statute, and (2) in concluding that the plaintiff was not a bona fide purchaser.

The trial court found the following relevant facts. Certain premises, consisting of approximately 12,500 square feet, were leased to the defendant by the Charles E. Drazen Trust, by written lease dated December 5,1977. On December 11,1979, the defendant and the Drazen Trust executed an amendment to the 1977 lease, leasing an additional 4000 square feet to the defendant for the purpose of enlarging the roller skating rink that the defendant had been operating on the 12,500 square foot premises provided for in the earlier lease.

The amendment provided that the defendant would be responsible for all the costs of constructing the 4000 square foot expansion, additional rent, taxes and insurance and, in addition, gave the defendant the option of extending the lease term for the entire 16,500 square foot premises to March 31,1998. Neither the original lease nor the 1979 amendment was recorded.

On December 31, 1985, the Drazen Trust sold the property to Donald J. Sherman. At that time, Sherman requested that he be supplied with any and all leases relating to the subject property. Sherman was not given the 1979 amendment to the lease. On that same date, Sherman sold the property to the plaintiff, Drazen Properties Limited Partnership.

On February 23, 1987, the plaintiff brought a summary process action against the defendant to obtain possession of the 4000 square foot premises referred to in the 1979 amendment to the original lease. The plaintiff subsequently filed a revised complaint for the same purpose on April 20, 1987. The plaintiff contended that, because the 1979 amendment was unrecorded, it is invalid pursuant to General Statutes § 47-19 and passes no leasehold interest to the defendant, and, therefore, as to the 4000 square foot premises covered by the amendment, the defendant was merely a month-to-month holdover tenant and subject to eviction by summary process. The plaintiff further contended that, at the time it purchased the property from Sherman, Sherman had delivered the documents that had been provided to him at the time of his purchase of the property. These included the original lease between the defendant and the Drazen Trust for 12,500 square feet, but did not include the 1979 amendment providing for the lease of the additional 4000 square feet. The plaintiff contended that it had no notice of the 1979 amendment and, therefore, was a bona fide purchaser for value with no notice of the defendant’s claim or interest in the 4000 square foot premises.

The trial court concluded that, because the plaintiff alleged in its revised complaint that it was a successor to the original lessor, the Drazen Trust, the plaintiff was not entitled to invalidate the amendment to the lease pursuant to General Statutes § 47-19 on the grounds that it was unrecorded. In addition, the trial court concluded that, even if the plaintiff was not a successor as that term is used in § 47-19, the plaintiff had actual notice of the amendment and was, therefore, not a bona fide purchaser for value entitled to invalidate the lease. We conclude that although the trial court erred in concluding that the defendant was a successor to the original lessor for the purposes of § 47-19, it did not err in finding that the plaintiff was not a bona fide purchaser for value, and, therefore, did not err in rendering judgment for the defendant.

General Statutes § 47-19 provides in pertinent part: “No lease of any building, land or tenement, for life or for any term exceeding one year or which provides for the renewal thereof or an option to purchase such building, land or tenement, shall be effectual against any persons other than the lessor and lessee and their respective heirs, successors, administrators and executors, unless it is in writing, executed, attested, acknowledged and recorded in the same manner as a deed of land . . . .”

The trial court concluded that the plaintiff had alleged, and thus admitted, that it is a successor to the original lessor, the Drazen Trust, and therefore the amendment to the lease was enforceable against the plaintiff despite being unrecorded. The plaintiff contends that its complaint alleged that it is a successor in interest, rather than a successor to the original lessor and that the term “successor” as used in General Statutes § 47-19 refers only to those who take property by the laws of succession and not to those who take by purchase or contract. We agree.

The plaintiff alleged in its revised complaint that it is a successor in interest to the Drazen Trust. The plaintiff subsequently denied the defendant’s special defense that the plaintiff is a successor of the original lessor and thus bound by the amendment to the lease. It is clear, therefore, that the plaintiff did not allege or admit that it is a successor to the original lessor, but instead alleged that it is a successor in interest.

The terms “successor” and “successor in interest” cannot be construed as equivalent for purposes of General Statutes § 47-19. The term “successor” is defined as “[o]ne who takes the place of another by succession.” Black’s Law Dictionary (5th Ed.). Succession refers to “[t]he devolution of title to property under the law of descent and distribution . . . the word when applied to realty denotes persons who take by will or inheritance and excludes those who take by deed, grant, gift, or any form of purchase or contract.” Id. Thus, a successor, as applied to realty, is one who takes by will or inheritance, rather than by deed, grant, gift, purchase or contract. In contrast, a successor in interest is “one who follows another in ownership or control of property”; id; and does not exclude those who take by deed, grant, gift, purchase or contract.

The recognition of the distinction between the terms “successor” and “successor in interest” is necessary to effectuate the purpose of § 47-19. The purpose of the statute is to protect creditors and bona fide purchasers from being bound by unrecorded leases of more than one year. Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn. of Meriden, 167 Conn. 294, 301, 355 A.2d 260 (1974). The statute specifically excluded “heirs, successors, administrators and executors” of the original lessor and lessee from its protection. To conclude that the term “successors” refers to all successors in interest to the original lessor or lessee would thwart the purpose of the statute. Creditors and bona fide purchasers also may be successors in interest to the original lessor or lessee and, thus, such an interpretation would potentially except those whom the statute is designed to protect.

The context of the term “successors” within the statute offers further support for our conclusion that the term refers only to those who take property by will or inheritance, rather than to successors in interest in general. An earlier version of the statute excluded only “heirs” of the original lessor or lessee from its protection. Public Acts 1961, No. 205 broadened the exception to include “heirs, successors, administrators and executors.” Thus, by adding the terms “successors,” “administrators” and “executors,” the statute appears to contemplate the exclusion of all entities, rather than simply heirs, that may own or control the property of an original lessor or lessee by reason of death.

We conclude, therefore, that because the plaintiffs allegation that it was a successor in interest to the original lessor does not amount to an allegation or admission that it was a successor to the lessor for purposes of General Statutes § 47-19, and because there is no evidence that the plaintiff acquired ownership of the subject property by will or inheritance, the trial court erred in concluding that the plaintiff was a successor to the original lessor under General Statutes § 47-19.

It is unnecessary, however, to reverse the judgment of the trial court, because the court found that, even if the plaintiff was not a successor to the original lessor and not excluded from the protection of the statute, the plaintiff was not a bona fide purchaser for value and therefore was not entitled to invalidate the amendment to the original lease. We agree.

General Statutes § 47-19 is designed to protect bona fide purchasers without actual notice from being bound by unrecorded leases. Farmers & Mechanics Savings Bank v. First Federal Savings & Loan Assn. of Meriden, supra, 301-302. “ ‘A bona fide purchaser is one who buys property of another without notice that some third party has a right to or interest in such property, and pays a full and fair price for the same . . . before he has notice of a claim or interest of such other in the property.’ Alden v. Trubee, 44 Conn. 455, 459 [1877].” Andretta v. Fox New England Theatres, Inc., 113 Conn. 476, 482, 155 A. 848 (1931). “The purchaser has such notice if he knows ‘facts which are sufficient to put a prudent man on inquiry which, if prosecuted with reasonable diligence, would certainly lead to discovery of a conflicting claim.’ Lengyel v. Peregrin, [104 Conn. 285, 288, 132 A. 459 (1926).]” Id., 480.

In the present case, the trial court found that Barry Drazen, the general partner and majority owner of Drazen Properties Limited Partnership, operated a shopping center next to the subject premises, had witnessed the construction of the 4000 square foot addition by the defendant and had full knowledge of the fact that the defendant was operating its business therein. The court also found that the records of the amount of rent, taxes and insurance paid by the defendant, of which Barry Drazen had knowledge, gave notice to the plaintiff that the defendant was paying more than the amounts called for by the original lease of 12,500 square feet. We cannot say, upon the facts found by the trial court, that the trial court erred in concluding that the plaintiff had notice of the amendment to the lease and was therefore not entitled to invalidate the amendment pursuant to General Statutes § 47-19.

There is no error.

In this opinion the other judges concurred.