author: Spear, J.

text:
    CMG Realty of Connecticut, Inc., et al. v. Colonnade One at Old Greenwich Limited Partnership et al.
    (12300)
    Dupont, C. J., and Heiman and Spear, Js.

      Argued September 21, 1994
    decision released January 31, 1995

      David M. Wallman, for the appellant-appellee (named plaintiff).

      Paul L. McCullough, for the appellees-appellants (defendants).
   Spear, J.

The sole issue on the appeal by the named plaintiff is whether a clause that required the defendant owners to pay the plaintiff broker $50,000 to terminate a brokerage contract was an unenforceable penalty. The issue on the defendants’ cross appeal is whether a brokerage contract made “as of” July 1, 1988, satisfies the date requirement of General Statutes § 20-325a (b) (3) where the plaintiff broker was not incorporated until August 15,1988, and did not sign the contract until October, 1988. We affirm the judgment of the trial court.

The plaintiff sought money damages from the defendants for breach of a contract that gave the plaintiff the exclusive right to market and sell units in a 178 unit condominium development that the defendants were constructing in Greenwich. The contract provided that the plaintiff would receive a draw of $12,000 a month against a 1 percent commission for each unit sold. The defendants were also responsible for certain of the plaintiffs employee costs and miscellaneous expenses. The defendants counterclaimed in two counts alleging (1) that the plaintiff had breached the contract and (2) that the defendants were entitled to a refund of the plaintiffs draw that exceeded earned commissions.

The case was tried to an attorney trial referee who recommended judgment for the plaintiff as against Colonnade One in the amount of $63,250. The referee also recommended that the plaintiff be awarded attorney’s fees incurred to recover the $50,000 termination fee that was included in the recommended judgment. The referee further recommended that judgment be rendered in favor of the plaintiff on both counts of the defendants’ counterclaim.

After a hearing on the objections and exceptions to the referee’s report, the trial court found that the $50,000 fee was in fact a penalty, which could not be recovered. The court rendered judgment for the plaintiff against all of the defendants in the amount of $13,250 plus interest from April 2, 1990, for money “wrongfully detained.” The court denied the plaintiff’s claim for attorney’s fees and rendered judgment in favor of the plaintiff on the defendants’ counterclaim.

The plaintiff claims in its appeal that it was entitled to the $50,000 termination fee and attorney’s fees. The defendants claim in their cross appeal that the contract was unenforceable because it did not satisfy the date requirement of § 20-325a (b) (3).

I

We first address the issue raised in the defendants’ cross appeal as to the enforceability of the contract. There is no dispute that the subject contract was a real estate brokerage agreement that must comply with all of the provisions of § 20-325a (b) to be enforceable. It is also undisputed that the plaintiff was incorporated on August 15, 1988, that the contract was signed by all of the parties in October, 1988, that the plaintiff was licensed at the time that this action was brought and that the plaintiff was licensed at the time that the services were rendered.

The statutory scheme of § 20-325a requires that a party who sues for a real estate commission must first show that the written contract or authorization under which the claim is made satisfies the facial requirements of the statute as to names, addresses, date, conditions and signatures. Additionally, the party must also show licensing at the two critical times: (1) at the time the action is brought; and (2) at the time the services are rendered.

Section 20-325a (b) (3) of the statute can be satisfied either by a written contract that states the date on which it was entered into by the parties or a written authorization that shows the date on which the services of the broker were authorized by the owner. The defendants claim that neither date requirement of General Statutes § 20-325a (b) (3) was met. We disagree.

A

The trial court found that the broker’s services were “authorized” as of July 1,1988, and, therefore, the contract satisfied the statute. The defendants assert that the plaintiff could not possibly have received authorization from the defendants as of July 1,1988, because the plaintiff did not come into existence until August 15, 1988. We agree.

The trial court relied on Arruda Realty, Inc. v. Doyon, 35 Conn. Sup. 617, 401 A.2d 625, cert. denied, 176 Conn. 763, 394 A.2d 201 (1978). In ruling on an appeal from a summary judgment, that court held that a listing agreement that stated, “ ‘[tjhis agreement will be effective commencing Sept. 17,1976’ ”; id., 619; complied with the date requirement of § 20-325a (b) because “authorization could be found to have been given on September 17, 1976.” (Emphasis added.) Id., 620.

Authorization is official approval or permission. See Webster’s Third New International Dictionary. By signing the contract, the defendant owners authorized the plaintiff broker’s services from that date forward. Retroactive authorization of those services that were rendered prior to the contract’s signing date could have been accomplished only by the defendants’ ratification of those acts that constituted the services. “Ratification is defined as the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account. . . . Ratification requires acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances.” (Citation omitted; emphasis added; internal quotation marks omitted.) Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986). Authorization by ratification could be found for actions that occurred from the date that the contract was signed retroactive to August 15, 1988, when the plaintiff corporation came into existence. The plaintiff did not exist, however, during the period from July 1, 1988, to the time of its incorporation on August 15, 1988. It could not have performed any acts during that period that were capable of ratification by the defendant. Retroactive authorization as of July 1,1988, was not possible, and, therefore, the trial court’s legal conclusion that there was such authorization cannot stand.

B

The defendants also assert that the July 1,1988 date did not comply with the alternative statutory requirement that a brokerage contract show the date on which it was entered into by the parties because the contract was actually signed on October 15,1988. The trial court did not rule on this claim because it found authorization for the broker’s services as of July 1, 1988. We conclude that the contract date requirement of the statute, rather than the authorization date, was satisfied here. The parties briefed and argued both date alternatives and “[t]his court is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992); Latimer v. Administrator, 216 Conn. 237, 252, 579 A.2d 497 (1990); In re Jennifer G., 29 Conn. App. 689, 692, 617 A.2d 921 (1992).

We first note that the cases cited by the defendants in support of their claim that the July 1 date does not comply with the contract date provision of the statute furnish little guidance as they all involved omissions that were apparent on the face of each document. New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098 (1990) (failure to identify particular sales price); Hossan v. Hudiakojf, 178 Conn. 381, 423 A.2d 108 (1979) (failure to include broker’s address); Boline v. Albert, 23 Conn. App. 688, 583 A.2d 945 (1991) (failure to include special conditions of agreement); Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 552 A.2d 827 (1989) (failure to include rate of broker’s commission). These cases shed no light on the issue of whether an execution date that is different from the date on the face of the contract renders the date on the contract invalid pursuant to § 20-325a (b) (3).

We conclude that the July 1,1988 date satisfies the statute because it is the date on which the parties chose to become contractually bound. This “as of” date is the effective date of the contract for two reasons. First, the parties are free to contract as they wish and, second, a corporation may adopt rights and obligations that predate its existence.

Parties are always free to contract as they see fit as long as the contract does not violate any law or public policy. “It is established well beyond the need for citation that parties are free to contract for whatever terms on which they may agree.” Holly Hill Holdings v. Low-man, 226 Conn. 748, 755, 628 A.2d 1298 (1993); see also Collins v. Sears, Roebuck & Co., 164 Conn. 369, 377, 321 A.2d 444 (1973); 17A Am. Jur. 2d, Contracts § 174 (1991). We discern no reason here why the parties could not agree on the date when they would become contractually bound, whether that date was before (or after) the date on which they actually signed the contract.

A corporation can acquire rights and subject itself to duties with respect to preincorporation matters. A contract made in the name of an inchoate corporation can be enforced after the corporation is organized on the principle of ratification. Cramer v. Burnham, 107 Conn. 216, 219, 140 A. 477 (1928). We note that such ratification here would not be subject to the infirmity discussed above where we concluded that the doctrine of ratification could not be used to show that the defendants authorized the plaintiff’s services as of July 1, 1988. By signing the contract, the plaintiff did not receive authorization as of July 1,1988, but rather gave its authorization to others for acts performed between July 1,1988, and the date of the contract. Such authorization would be by way of ratification of those acts, including any acts that were performed prior to the plaintiff’s incorporation. There is no claim that any acts subject to such ratification by the plaintiff were performed by a person or entity that was not in existence on July 1,1988. The attorney trial referee specifically found that Constance Greene, the plaintiff’s president, and Colonnade One, the other party to the contract, were in existence on July 1, 1988. A corporation can also be liable for the value of goods sold to its incorporators prior to incorporation where the articles were for the corporation’s use and benefit; Langendorfer v. Morse Oil Co., 115 Conn. 706, 161 A. 193 (1932); and we have held that a corporation has the right to sue on a preincorporation debt owed to its predecessor. Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447, 452-53, 505 A.2d 1255, cert. denied, 200 Conn. 802, 509 A.2d 516 (1986).

Under the circumstances here, we see no reason why the plaintiff could not bind itself to a contract dated earlier than its date of incorporation. We conclude that § 20-325a (b) (3) is satisfied because July 1,1988, is the effective date that the parties agreed to be bound by the contract.

C

The defendants’ last claim with respect to the date is that because the plaintiff did not exist on July 1,1988, it could not have been licensed on that date, and that § 20-325a thus prohibits this action. We disagree.

Section 20-325a (a) requires that, in order to bring an action for a broker’s commission, the plaintiff must (1) be licensed and (2) have been licensed at the time that services were rendered. There is no claim that the plaintiff was not licensed when it brought this action. Although there are penalties for engaging in the real estate brokerage business without a license, § 20-325a does not require that the party who brings an action for a real estate commission be licensed at the time the contract is made or authorized. The defendants do not assert that the plaintiff performed any of the services for which compensation was claimed prior to its being licensed. Lastly, there is no claim that the trial court awarded the plaintiff any commissions for unlicensed services. On the contrary, the evidence clearly shows that the plaintiff was properly licensed at the time that the action was brought and during the times that the services were rendered. Under these circumstances, § 20-325a presents no bar to the plaintiffs action and subsequent recovery.

II

On its appeal, the plaintiff claims that it is entitled to a $50,000 fee pursuant to § 12B (iii) (a) of the contract because the defendants terminated the contract without cause. The plaintiff first asserts that the trial court improperly substituted its own factual finding of a penalty for that of the attorney trial referee who found an enforceable termination fee. The plaintiff also asserts that the $50,000 fee could not be a penalty because it was an alternative performance that was bargained for by the parties. We disagree with both of the plaintiffs contentions.

A

The plaintiffs claim that the trial court substituted its factual findings for those of the attorney trial referee is without merit. The trial court rejected the referee’s legal conclusion that the $50,000 fee provided for in § 12B (iii) (a) was properly payable as a termination fee. On the same facts as found by the referee, the trial court came to a different legal conclusion, i.e., that the subject clause was a penalty and not a termination clause.

The attorney trial referee made no specific findings in his report as to the intent of the parties regarding the $50,000 fee. He found that the plaintiff was terminated without cause and, therefore, was legally entitled to the specified termination fee. He reasoned that as the contract was plain and unambiguous, it “must be followed in accordance with its terms.” It is clear that the attorney trial referee dealt with this provision as a matter of law that could be resolved by analyzing the plain language of the contract. This approach was proper because “[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” (Internal quotation marks omitted.) Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872 (1991).

The trial court, however, is not bound by the legal conclusions of an attorney trial referee. Practice Book § 443 provides in relevant part that “[t]he court shall render such judgment as the law requires upon the facts in the report as it may be corrected.” “The views of [an attorney trial referee] upon the law carry no more force than those of the parties in their arguments at the hearing before the court that is to enter judgment.” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 510, 508 A.2d 415 (1986). “The reviewing court is the effective arbiter of the law and the legal opinions of [an attorney trial referee], like those of the parties, though they may be helpful, carry no weight not justified by their soundness as viewed by the court that renders judgment.” Id.

The trial court properly concluded that the termination fee was a penalty as it was not related to any damages that the plaintiff would suffer in the event of a breach by the defendants. “If the provision was inserted for the purpose of deterring the defendant from breaching his contract and of penalizing him for doing so, instead of specifying a sum which the parties in good faith agreed upon as representing the damages which would ensue from a breach, it is to be regarded as imposing a penalty.” May v. Young, 125 Conn. 1, 9, 2 A.2d 385 (1938); Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 65, 485 A.2d 1296 (1985).

The penal nature of the clause is reinforced by § 12B (iii) (b) of the contract that provides for a $100,000 fee if termination occurs subsequent to the sale of eighty-four units. This doubling of the fee after the project achieved a certain level of success could only serve as a deterrent to the defendants’ terminating the plaintiff’s services without cause.

We are unpersuaded by the plaintiff’s claim that termination of the contract was a right that the defendants bargained for in exchange for the payment of $50,000. The “right” to terminate under the circumstances here is legally indistinguishable from the power to breach a contract possessed by any party whose contractual duties are executory. The contract language itself mandates this conclusion. Section 12B (ii) provides in pertinent part: “Termination by Cause: This Agreement may be terminated by either affected party for cause, which shall be defined as a material breach by either party of its obligation set forth in this Agreement. . . . If the Agreement is terminated by Broker [for cause], it shall be treated as a termination without cause by Owner as described in subparagraph 12B (iii) of this section below, and Broker shall be entitled to receive compensation in accordance with the provisions of subparagraph 12B (iii).” Pursuant to this clause, a termination by the defendant without cause is treated the same way as if the defendant had breached the agreement. Furthermore, termination without cause by the defendants would not extinguish their obligations under the contract. The duty to pay certain commissions after termination and to indemnify the plaintiff could not be discharged by payment of the $50,000. This is precisely the situation that obtains upon a breach; the breaching party is not discharged from contractual responsibilities. Batter Building Materials Co. v. Kirschner, 142 Conn. 1, 10, 110 A.2d 464 (1954); Rokalor, Inc. v. Connecticut Eating Enterprises, Inc., 18 Conn. App. 384, 392, 558 A.2d 265 (1989). The trial court correctly concluded that the termination fee clause calls for the payment of a penalty for breach of the contract.

B

The plaintiff further asserts that the trial court found that § 12B (in) was a liquidated damage clause and that such finding was contrary to the findings of the attorney trial referee. The trial court did not find that the termination fee provision was a liquidated damage clause and alluded to liquidated damages only by way of observing that: “The report of the attorney trial referee does not contain findings sufficient to satisfy the conditions for an enforceable liquidated damages provision and therefore, the court concludes that the payment of the termination fee constitutes an unenforceable penalty provision.”

The conditions that the court mentioned are well known. “It is well settled that a seller may not retain a stipulated sum as liquidated damages and also recover actual damages. ... It is equally well settled that a contract provision which imposes a penalty for breach of contract is invalid, but a provision which allows liquidated damages for breach of contract is enforceable if certain conditions are satisfied. . . . The requisite three conditions are that: (1) the damage which was to be expected as a result of a breach of contract was uncertain in amount or difficult to prove; (2) there was an intent on the part of the parties to liquidate damages in advance; and (3) the amount stipulated was reasonable.” (Citation omitted.) Hanson Development Co. v. East Great Plains Shopping Center, Inc., supra, 195 Conn. 64-65; see also Norwalk Door Closer Co. v. Eagle Lock & Screw Co., 153 Conn. 681, 686, 220 A.2d 263 (1966).

The plaintiff’s assertion that the trial court found a liquidated damage clause rests on its claim that the trial court’s finding of a penalty was an implicit finding that the parties intended to liquidate damages. As no such intent was found by the attorney trial referee, the plaintiff claims that such a finding by the trial court was improper.

The flaw in this reasoning is apparent. It was because the attorney trial referee made no finding of an intent to liquidate damages and made no other liquidated damage findings that the trial court refused to find a liquidated damage clause.

C

“The party seeking to repudiate a clause that fixes a sum as damages has the burden of showing that the agreed sum is so exorbitant as to be in the nature of a penalty.” St. Margaret’s-McTernan School, Inc. v. Thompson, 31 Conn. App. 594, 598, 627 A.2d 449 (1993). The plaintiff was allowed a draw against unearned commissions. It actually received the sum of $228,000 although the trial referee found that only $124,120 had been in fact earned. The trial court, while adopting that finding, rejected the attorney trial referee’s recommendation that the defendants be reimbursed for the excess draw over commissions earned. That rejection was not made a ground of the defendants’ cross appeal. In Syncsort, Inc. v. Indata Services, 14 Conn. App. 481, 486, 541 A.2d 543, cert. denied, 209 Conn. 804, 548 A.2d 443 (1988), this court stated that “the plaintiff is not seeking recovery for the use of its product but is seeking to impose an unconscionable penalty upon the defendant for its election not to proceed with the contract.” A penalty for not proceeding with the contract is precisely what the plaintiff seeks here. The plaintiff’s retention of the excess draw over commissions earned plus the award of $13,250 plus interest in the judgment here has fully compensated the plaintiff under the contract. The defendants have carried their burden of showing that the payment of an additional $50,000 as a termination fee would be nothing more than a penalty.

D

The plaintiffs final effort to prevail on the termination fee issue is its claim that the clause is actually one for an alternative performance. The plaintiff relies solely on a treatise by Professor Corbin who describes the doctrine as follows: “In an alternative contract the performance of either alternative completely discharges the promisor’s duty and entitles him to the performance that was promised in exchange. The payment of damages for breach of a promise never entitles the wrongdoer to the performance promised him in exchange . . . . Where the parties intend the payment to be the agreed price of the privilege of not performing the promise, the language that they employ is very different. ... In the case of a true alternative contract, the performance of either alternative operates as a complete discharge of the promisor’s duty and prevents any further remedy against him, direct or indirect. . . . The payment of damages, whether liquidated or unliquidated, never does this.” (Emphasis added.) 5 A. Corbin, Contracts (1964) § 1070, pp. 393-97.

The contract provisions that provide for damages in addition to the termination fee vitiate this claim. Payment of the $50,000 fee would not completely discharge the defendants’ contractual duties; therefore, the doctrine of alternative performance could not apply here.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court rendered judgment on the complaint in favor of the named plaintiff, CMG Realty of Connecticut, Inc. (CMG Realty). The plaintiff Constance Greene, a licensed real estate broker and president of CMG Realty, withdrew her complaint prior to trial. As used in this opinion, the plaintiff refers to CMG Realty.

       The defendants are Colonnade One at Old Greenwich Limited Partnership (Colonnade One), Old Colonnade Limited Partnership, Collins Colonnade Limited Partnership, Arthur Collins and YTB (Leasing) America, Inc. The trial court rendered judgment against all of the defendants as partners even though only Colonnade One was a party to the contract at issue.

       We will not review the defendants’ claims that exhibit D, which is the basis for $12,000 of the judgment, did not meet the requirements of General Statutes § 20-325a. See footnote 7. That claim was not raised in the trial court and we decline review pursuant to Practice Book § 4185, which provides in pertinent part: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial . . . .”

       General Statutes § 20-325a provides in pertinent part: “actions to RECOVER COMMISSIONS ARISING OUT OF REAL ESTATE TRANSACTIONS, (a) No person who is not licensed under the provisions of this chapter, and who was not so licensed at the time he performed the acts or rendered the services for which recovery is sought, shall commence or bring any action in any court of this state, after October 1,1971, to recover any commission, compensation or other payment in respect of any act done or service rendered by him, the doing or rendering of which is prohibited under the provisions of this chapter except by persons duly licensed under this chapter.
      “(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1,1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given, (4) contain the conditions of such contract or authorization and (5) be signed by the owner or an agent authorized to act on behalf of the owner only by a written document executed in the manner provided for conveyances in section 47-5, and by the real estate broker or his authorized agent.” (Emphasis added.)

       The complaint alleges, inter alia, that the defendant Colonnade One terminated the agreement for no cause and as a result obligated itself to pay the plaintiff $50,000 as a termination fee. There is no express allegation that Colonnade One breached the contract by failing to pay the termination fee. That was the issue, however, that was tried. We will treat the case as the parties treated and presented it at trial. See Lambrakos v. Carson, 174 Conn. 482, 485, 391 A.2d 142 (1978); State v. Beauton, 170 Conn. 234, 237, 365 A.2d 1105 (1976); Ives v. Burgess, 155 Conn. 698, 699, 231 A.2d 276 (1967).

       The attorney trial referee also recommended an offer of judgment interest award based on General Statutes § 52-192a because his recommended judgment exceeded the $49,000 offer of judgment. There is no need to discuss this issue as we affirm a judgment of less than $49,000.

       This sum represents $12,000 for the monthly draw of March, 1990, and $1250 as salary reimbursement for a public relations employee of the plaintiff.

       The judgment file states that the defendants’ objections to the report “should be denied.” The defendants only objection was as to the $50,000 termination fee and the court’s memorandum of decision and judgment make it clear that the court actually sustained that objection.

       The plaintiff asks that we remand the case to the Superior Court for further proceedings on its claim for attorney’s fees in the event that we reverse the trial court as to the termination fee. Our affirmance of the trial court’s judgment obviates the need for such a remand.

       See footnote 4.

       There is no claim that the plaintiff had a “de facto” existence prior to its date of incorporation.

       See footnote 4.

       General Statutes § 20-312 prohibits one from acting as a real estate broker without a license. General Statutes § 20-325 (a) provides in pertinent part that “[a]ny person who engages in the business of real estate broker . . . without obtaining a license . . . shall be fined not more than one thousand dollars or imprisoned not more than six months or both

       Section 12B (iii) of the contract provides in relevant part: “Should Owner decide to terminate the services of Broker without cause, which shall, without limitation, include project delay or hold, Owner shall be liable to pay Broker as follows: (a) If termination occurs prior to the sale of eighty-four (84) Units, the sum of Fifty Thousand ($50,000.00) Dollars . . . .”

       Section 4A (ii) of the contract provides that the broker shall be paid a commission: “If, within one hundred twenty (120) days after termination of this Agreement, the Listed Property or any Unit thereof is sold, transferred or otherwise conveyed to any person or entity listed on the Registration List referred to hereinafter, or if a Unit is placed under a purchase agreement executed by such purchaser within said one hundred twenty (120) days, and said purchase agreement is subsequently signed by Owner. Within thirty (30) days following the termination of this Agreement, Broker shall supply Owner with a ‘Registration List’ enumerating the names of all persons or entities with whom or which Broker has entered into negotiations during the term of this Agreement in an effort to effect a sale, but theretofore has not been consummated . . . .”
      Section 101 of the contract provides: “Owner agrees that if, at any time within one year after any termination of this Agreement, Owner employs directly or indirectly, any person who was a broker, Sales Manager, or sales professional of Broker either as an employee or independent contractor of Broker during the term of this Agreement, then Owner will pay Broker one-half (1/2) of the commissions of any Units in the same manner as though this Agreement had remained in force for said one-year period.”

       Section 8A of the contract provides in pertinent part: “Owner shall indemnify and hold Broker, and Broker’s agents, directors, officers, and employees harmless from any claims, lawsuits, or actions, at law or in equity, of any kind or nature whatsoever relating to those claims arising directly or indirectly from Owner’s breach of a purchase agreement relating to any Unit, or from any misrepresentation made by Owner and not attributable to Broker, or from any breach by Owner of the terms hereof, or from the violation by Owner of any state or federal laws with respect to prohibition against discrimination, or from the violation by Owner of any legal requirements relating to the sale of Units. Said indemnity shall include reasonable counsel fees and costs of suit. . . . These indemnifications shall survive the termination of this Agreement.”

       We note that the attorney trial referee stated on the record at the conclusion of the evidence: “[The termination fee clause] doesn’t necessarily state the claim for liquidated damages but it has the effect of stating a damage amount that in fact has no relevance to any evidence that I’ve heard.”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Tiber Holding Corporation et al. v. Daniel S. Greenberg
    (13021)
    Dupont, C. J., and Foti and Schaller, Js.
    Argued November 1, 1994
    decision released January 31, 1995

      Kathryn L. Braun, for the appellant (defendant).

      Lisa D. Galati, for the appellee (plaintiffs).
   Per Curiam.

This is an appeal from the judgment of the trial court denying the defendant’s motion for reconsideration of the defendant’s claim for expenses incurred in copying records requested by a subpoena duces tecum. The plaintiffs had brought a petition to compel the defendant to comply with a subpoena duces tecum that was served on the defendant in connection with an action pending in Pennsylvania, in which the defendant was not a party. The defendant sought monetary compensation for his efforts in complying with the subpoena. The trial court awarded him $206.85. This judgment was rendered and issued by mail on October 9, 1992.

On August 12,1993, the defendant’s counsel filed a supplemental motion for reconsideration and on October 22,1993, the trial court issued notice of the denial of the motion. The defendant’s appeal was filed on November 10, 1993. The defendant did not file an appeal within twenty days of the date of the original judgment of October 9, 1992, nor did he file a motion for reconsideration within twenty days of the original judgment. Practice Book § 4009.

On appeal from a denial of a motion to open a judgment or to reconsider or reargue, where there has been no appeal from the underlying judgment or motion to open within twenty days, the good cause required to open that judgment cannot involve the merits of the judgment. Altberg v. Paul Kovacs Tire Shop, Inc., 31 Conn. App. 634, 639, 626 A.2d 804 (1993). “When a motion to open is filed more than twenty days after the judgment, the appeal from the denial of that motion can test only whether the trial court abused its discretion in failing to open the judgment and not the propriety of the merits of the underlying judgment. ” Id., 640. This is so because otherwise the same issues that could have been resolved if timely raised would nevertheless be resolved, which would, in effect, extend the time to appeal.

The defendant’s claims on appeal all relate to the merits of the underlying judgment, rather than to whether the trial court abused its discretion in not reconsidering the judgment. We may not review the claims raised.

The appeal is dismissed.

       A motion to reargue or reconsider is proper even if no provision for reargument is provided in the rules of practice. Steele v. Stonington, 225 Conn. 217, 219 n.4, 622 A.2d 551 (1993); see also 1 Connecticut Practice, W. Moller & W. Horton, Practice Book Annotated (Sup. 1995) § 196, comment. In Steele, the Supreme Court noted that, “[njotwithstanding the absence of a rule or statute, it is the inherent authority of every court, as long as it retains jurisdiction, to reconsider a prior ruling. As the United States Supreme Court has said: ‘It is a power inherent in every court of justice so long as it retains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process.’ (Internal quotation marks omitted.) United States v. Morgan, 307 U.S. 183, 197, 59 S. Ct. 795, 83 L. Ed. 1211 (1939); see Board of Education v. New Haven, 221 Conn. 214, 215, 602 A.2d 1018 (1992) (‘[i]t is puzzling to us why, after the trial court rendered the judgment of dismissal, none of the parties ever sought to reargue the dismissal before the trial court’). If a court is not convinced that its initial ruling is correct, then in the interests of justice it should reconsider the order, provided it retains jurisdiction over the subject matter and the parties.” Steele v. Stonington, supra, 219 n.4; see also W. Horton & S. Cormier, Rules of Appellate Procedure (1995 Ed.) § 4009, comment 3.

       On appeal, the defendant claims as follows: “Did the Trial Court err in refusing to reconsider a decision denying most of a non-party witness’ claim for reimbursement of costs, fees and expenses incurred in producing materials subpoenaed for a deposition, where: a) the witness was denied due process of law and a full and fair opportunity to be heard; b) the witness was treated inequitably and was not afforded the consideration given pro se parties in accordance with established Connecticut law; c) the decision was premised solely on an erroneous conclusion of law and was not supported by the relevant evidence and law?”


author: Hennessy, J.

text:
    State of Connecticut v. Troy Mozell
    (12394)
    Lavery, Hennessy and Freedman, Js.
    Argued November 7, 1994
    decision released January 31, 1995

      Jeffrey D. Hutcoe, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, assistant state’s attorney, for the appellee (state).
   Hennessy, J.

The defendant, Troy Mozell, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 2 la-278 (b), and conspiracy to sell narcotics in violation of General Statutes § 53a-48. The defendant claims that the trial court improperly admitted into evidence a gun and testimony of a witness regarding the gun. Although we agree that the trial court improperly admitted the evidence, we conclude that the error was harmless.

The following facts are relevant to this appeal. In early March, 1991, the defendant and others were under surveillance by the New Haven police as suspected members of a drug ring. As a result of observations made and information obtained during this surveillance, search warrants were issued in early March for the residences of Millicent Parker and Nicole Lowery. At Parker’s home, various items used in drug packaging were found, as well as a safe containing a large quantity of cocaine. At Lowery’s home, a .38 caliber handgun was found. On the basis of this evidence and the surveillance of the New Haven police, the defendant was arrested and charged with conspiracy to sell narcotics and possession of narcotics with intent to sell.

At trial, Everitt Thompson, a charged coconspirator, testified that in late February he had seen Ernest Williams, the suspected leader of the drug ring, carrying a gun. Lowery, also a charged coconspirator, testified that at the end of February, a week or more before the search warrant for her home was executed, Williams, who was her boyfriend, came to her apartment and gave her a gun. She further testified that at the time Williams brought the gun to her apartment he was accompanied by the defendant. The gun remained in Lowery’s apartment from the time Williams brought it there, in late February, until it was seized by the police pursuant to the search warrant executed on March 6, 1991.

At trial, over the defendant’s objection, the gun and Lowery’s testimony about the gun were admitted into evidence. At the conclusion of the trial, the jury rendered a verdict of guilty of both possession of narcotics with intent to sell and conspiracy to sell narcotics. This appeal followed.

The sole issue on appeal is whether the trial court properly admitted into evidence a gun possessed by a charged coconspirator and testimony of another charged coconspirator concerning the gun. The prosecution contends that evidence that a charged coconspirator possessed a gun, with the defendant’s knowledge, was relevant to show the defendant’s intent to participate in a conspiracy to sell drugs. The defendant argues that because there was no evidence tying the seized gun to the alleged conspiracy, the gun and Lowery’s testimony concerning the gun were improperly admitted into evidence. We agree with the defendant.

As a matter of hornbook law, evidence of other crimes or bad acts is normally treated as inadmissible character evidence. See, e.g., 1 C. McCormick, Evidence (4th Ed. 1992) § 190. An exception to this general rule is that such evidence may be admissible to prove the existence of a larger plan, scheme or conspiracy of which the crime charged at trial is a part. Id., pp. 800-801. In applying this rule and its exception, our Supreme Court has held that evidence that a defendant possessed instruments or articles adapted to the commission of other crimes is inadmissible, unless such evidence tends to establish a fact in issue or to corroborate other direct evidence in the case. State v. Acklin, 171 Conn. 105, 114, 368 A.2d 212 (1976). We note, however, that our review of evidentiary claims is limited. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the trial court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.” (Citations omitted; internal quotation marks omitted.) State v. Coleman, 35 Conn. App. 279, 285, 646 A.2d 213, cert. denied, 231 Conn. 928, 648 A.2d 879 (1994).

Urging us to find that the trial court properly admitted into evidence the gun and Lowery’s testimony about the gun, the state calls our attention to a series of cases wherein illegal involvement in the drug trade invariably involves the presence of guns. The state argues that given a well established connection between guns and drugs, the introduction of the gun and testimony about the gun in this case help to prove the defendant’s participation in a conspiracy to distribute drugs. We do not agree.

Connecticut courts have repeatedly noted that “[tjhere is a well established correlation between drug dealing and firearms.” State v. Cooper, 227 Conn. 417, 426 n.5, 630 A.2d 1043 (1993); see also State v. Carter, 228 Conn. 412, 424 n.15, 636 A.2d 821 (1994); State v. Delossantos, 211 Conn. 258, 281, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989); State v. Lee, 30 Conn. App. 470, 489, 620 A.2d 1303, aff’d, 229 Conn. 60, 640 A.2d 553 (1993). Contrary to the state’s suggestion, these cases do not mandate the admissibility of the challenged evidence in this case. In each of these cases, guns, or testimony about the presence of guns, was relevant and material for reasons other than a “well established correlation between drug dealing and firearms.”

State v. Cooper, supra, 227 Conn. 426 n.5, and State v. Carter, supra, 228 Conn. 424-25 n.15, do not bear on the present case, as they dealt with the admissibility of prior convictions for drug dealing in cases involving shootings in order to support allegations that the shootings were drug related. The state’s reliance on State v. Delossantos, supra, 211 Conn. 281, and State v. Lee, supra, 30 Conn. App. 489, is no more persuasive. In Delossantos, the court admitted testimony of the defendant’s possession of a loaded gun in a car where drugs were found and allowed the state to introduce expert evidence that individuals possessing large amounts of drugs often carry weapons for protection. Unlike the present case, Delossantos involved a gun that admittedly belonged to the defendant and that was physically present at the same time and in the same place as drugs to which the defendant denied any connection. State v. Delossantos, supra, 281. In Lee, this court allowed evidence of firearms found in the defendant’s home when the defendant was charged with attempted possession of more than one kilogram of marijuana. Lee also differs from the present case because the guns involved were actually in the defendant’s home. State v. Lee, supra, 489.

In this case the defendant was never alleged or shown to be in possession of the gun. Nor was the gun alleged or shown to be involved in any of the activities observed by the surveillance team. The gun was in Lowery’s apartment prior to the time surveillance began and remained there until it was seized. There was no connection between the gun and the offense charged in this case; nor was there any connection between the gun and the defendant. “It is error to allow into evidence [articles or] testimony concerning articles seized . . . that tend to indicate criminal propensity when those articles are not connected to the commission of the crime charged.” State v. Coleman, supra, 35 Conn. App. 287; see also State v. Acklin, supra, 171 Conn. 114. We conclude, under the facts of this case, that the trial court abused its discretion in admitting the gun into evidence and allowing the testimony of Lowery concerning the gun.

Our analysis, however, does not end here. Having concluded that the trial court improperly admitted the gun into evidence, we must next determine whether this error was harmful. State v. Coleman, supra, 35 Conn. App. 285. We hold that it was not.

“When, as is true here, an error in a criminal case does not involve a constitutional violation, the burden is on the defendant to demonstrate the harmfulness of the court’s error. The defendant must show that it is more probable than not that the erroneous action of the court affected the result [of the trial]. . . . State v. Hoeplinger, 27 Conn. App. 643, 649, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992); see also State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980).” (Internal quotation marks omitted.) State v. Coleman, supra, 35 Conn. App. 288.

The defendant has failed to demonstrate how the admission of Lowery’s testimony and the introduction of the gun into evidence were harmful to him. The state introduced evidence from which the jury could reasonably have concluded that the defendant exercised control over the drugs found in the safe in Parker’s apartment, that the defendant had gone with others to the safe in Parker’s apartment and removed drugs to be sold, that the defendant had participated with others in street sales of drugs, and that the defendant, again with others, had prepared cocaine for sale in Parker’s apartment. These activities provide such substantial evidence of a conspiracy to sell drugs that we cannot conclude that it is more probable than not that the exclusion of the gun and Lowery’s testimony about the gun would have affected the outcome of the trial. Because the defendant has failed to meet his burden of proving that the error was harmful, his claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance hallucinogenic substance, other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       We are also not persuaded by the federal precedent cited in the state’s brief. Those cases, which involve the admissibility of firearms in a prosecution for dealing narcotics, inevitably deal with firearms that were unquestionably under the dominion and control of the defendant, not a coconspirator. See, e.g., United States v. Fagan, 996 F.2d 1009, 1015 (9th Cir. 1993); United States v. Saget, 991 F.2d 702, 709 (11th Cir. 1993); United States v. Martinez, 938 F.2d 1078, 1083 (10th Cir. 1991); United States v. Rodriguez, 765 F.2d 1546, 1562 (11th Cir. 1985).


text:
    Raymond Ranciato v. Joshua Nelson et al.
    (13363)
    Foti, Landau and Spear, Js.
    Argued November 29, 1994
    decision released January 31, 1995

      Alphonse Di Benedetto, for the appellant (petitioner).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Per Curiam.

In this appeal from the denial of an application for a writ of habeas corpus, the petitioner, Raymond Ranciato, challenges his impending extradition to California pursuant to General Statutes § 54-159. The gist of his four claims is that the trial court improperly determined that sufficient facts existed to justify its findings that the extradition documents charging the defendant with a crime stated probable cause and that the documents were authentic.

“We first consider our scope of review. Tn a habeas corpus appeal, this court may not disturb underlying historical facts found by the habeas court unless they are clearly erroneous. Veal v. Warden, 28 Conn. App. 425, 428, 611 A.2d 911, cert. denied, 224 Conn. 902, 615 A.2d 1046 (1992); Biggs v. Warden, 26 Conn. App. 52, 56, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991). [W]e are called upon to determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . Our function is not to examine the record to see if the trier of fact could have reached a contrary conclusion.’ (Citation omitted; internal quotation marks omitted.) Siano v. Warden, 31 Conn. App. 94, 95, 623 A.2d 1035, cert. denied, 226 Conn. 910, 628 A.2d 984 (1993).” McKnight v. Commissioner of Correction, 35 Conn. App. 762, 765, 646 A.2d 305, cert. denied, 231 Conn. 936, 650 A.2d 173 (1994).

After reading the whole record, we cannot say that the facts set out in the trial court’s memorandum of decision are clearly erroneous.

The judgment is affirmed.

       General Statutes § 54-159 provides in pertinent part: “No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging . . . that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and accompanied by a copy of an indictment found or by information supported by affidavit . . . or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon .... The indictment, information or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of indictment, information, [or] affidavit . . . must be authenticated by the executive authority making the demand.”


author: O’Connell, J.

text:
    State of Connecticut v. Paul Varszegi
    (12599)
    O’Connell, Foti and Schalleh, Js.

      Argued November 1, 1994
    decision released January 31, 1995

      James J. Ruane, special public defender, with whom, on the brief, was James O. Gaston, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Richard L. Palombo, Jr., assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempted escape in the first degree in violation of General Statutes §§ 53a-49 and 53a-169 (a) (l), and criminal mischief in the second degree in violation of General Statutes § 53a-116 (a) (l).

The defendant claims that (1) he did not knowingly and intelligently waive his right to counsel, (2) the impeachment of his credibility by a conviction which was later vacated on appeal violated his constitutional rights, (3) the trial court improperly rejected his defense of necessity, and (4) the trial court improperly admitted into evidence two prior failure to appear convictions. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The defendant was a sentenced prisoner at the community correctional center at Bridgeport on March 1, 1992, when a correction officer discovered a hacksaw blade hidden in his cell. On further inspection, the officer discovered that the window in the cell had been cut. The defendant admitted that he had cut the bars on the window.

The defendant testified and introduced evidence claiming to show that he was motivated to escape because (1) he was fearful of assault by other inmates, (2) he was not receiving proper medical care, and (3) he was in danger of contracting tuberculosis. He argues that this scenario supports the common law defense of necessity.

I

The defendant, who is represented by counsel on appeal, claims that the trial court improperly permitted him to represent himself throughout his trial. At his initial appearance in the Superior Court, the defendant advised the court that he wanted to appear pro se. The trial court canvassed the defendant in accordance with Practice Book § 961 and found that he had knowingly and intelligently waived his right to counsel.

The defendant concedes that the canvass and waiver of counsel were proper, with the exception that he was not adequately advised of the nature of the charges or the dangers of self-representation. The record discloses that the defendant was a “few credits shy” of a college degree, was a landlord with more than 500 tenants and did business in insurance and real estate development. The court also found that he had represented himself at a sentencing hearing in the federal court before appearing in court in the present case.

Although the court advised him that a public defender would be appointed for him if he qualified, he declined because he felt that because public defenders and prosecutors were both employees of the state, there might be a conflict of interest. He also expressed dissatisfaction with attorneys who had represented him in prior cases. Notwithstanding the defendant’s adamant insistence on self-representation, the trial court appointed a public defender to act as standby counsel.

Despite the defendant’s claim to the contrary, the record discloses that the trial court advised the defendant of the charges and of the range of penalties that could be imposed for each crime. We do not agree with the defendant that the trial court had a duty to advise him in such depth as to include, inter alia, (1) conceptual distinctions between a completed crime and the inchoate crime of attempt, (2) the possible defense of abandonment, (3) his right to assert inconsistent defenses, and (4) the rule of evidence that allows a defendant to explain to the jury that a prior conviction used to impeach him is on appeal.

On appeal, the defendant, now represented by experienced counsel, looks back over the record and points to his mistakes, which would not have been made by an experienced trial attorney. He claims that it was the trial court’s duty to foresee generic problems that might have arisen and to have warned him of them. We do not find such an extensive duty in Practice Book § 961, nor will we impose the impossible mantle of clairvoyance on our trial judges. We cannot require that they predict the problems that may occur due to the vicissitudes of a trial. Furthermore, we decline to lay down a rule that would make the trial court counsel for the defendant.

“[A] defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation .... [H]is technical legal knowledge as such, [is] not relevant to an assessment of his knowing exercise of the right to defend himself. . . . [T]o also require a lawyer’s expertise as a prerequisite to asserting the right would deny it to all but a small portion of society.” (Citation omitted; internal quotation marks omitted.) State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984).

There can be no dispute that a defendant has a right under our federal and state constitutions to represent himself if he elects to do so; State v. Townsend, 211 Conn. 215, 218, 558 A.2d 669 (1989); but “where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly.” Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).

It is evident from the record here that the defendant persistently refused to be represented by a lawyer at his trial. In essence, he insisted on being his own attorney and now complains that he had inadequate counsel. We conclude that the trial court properly found, pursuant to Practice Book § 961, that the defendant knowingly and intelligently waived his right to counsel.

II

The defendant next claims that his impeachment by a larceny conviction that was subsequently reversed violated his federal and state constitutional rights to present a defense, to a fair trial and to due process of law. Prior to the defendant’s trial in the present case, he had been convicted of larceny in the third degree. This conviction was on appeal at the time of his trial in the present case. Subsequent to this trial, his prior larceny conviction was reversed based on the absence of felonious intent. State v. Varszegi, 33 Conn. App. 368, 375, 635 A.2d 816 (1993), cert. denied, 228 Conn. 921, 636 A.2d 851 (1994) (defendant represented by counsel at trial but prepared own appellate brief).

We ruled on a substantially similar issue in State v. Schroff, 3 Conn. App. 684, 689, 492 A.2d 190 (1985). The sole distinction between Schroff and the present case is that in Schroff there is no indication that any of the convictions that were on appeal were eventually reversed. See also State v. Biller, 5 Conn. App. 616, 623, 501 A.2d 1218 (1985), cert. denied, 199 Conn. 803, 506 A.2d 146, cert. denied, 478 U.S. 1005, 106 S. Ct. 3296, 92 L. Ed. 2d 711 (1986). In Schroff, we said “[t]he defendant . . . claims that it was error for the court to admit evidence of convictions which were on appeal. We adopt the majority rule which states that the trial court ‘has discretion to allow the use for impeachment of a conviction under appeal, although he must, of course, allow defense counsel to point out the pendency of an appeal to the jury. In exercising this discretion, the judge is free, although not required, to examine any readily available papers that may bear on the substantiality of the appeal.’. . . [T]he defendant elected not to inform the jury that the convictions were on appeal.” (Citations omitted.) State v. Schroff, supra, 689.

The defendant here, like the defendant in Schroff did not elect to advise the jury that his larceny conviction was on appeal. We do not know whether this was trial strategy or an oversight due to lack of trial experience. Even if it was the latter, it would avail the defendant nothing on appeal. It is simply an example of the hazards of self-representation discussed in part I.

The defendant argues that this claim raises constitutional issues. We do not agree. It is concerned solely with an evidentiary ruling on the admissibility of a prior conviction into evidence for purposes of impeaching the defendant’s credibility. Calling it a constitutional issue will not make it one. State v. Golding, 213 Conn. 233, 240, 567 A.2d 823 (1989).

“It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985).

The defendant did not dispute that he attempted to escape. Rather, his case was based on a defense of necessity. All of his evidence, including his own testimony, dealt with that defense. Because that defense was never before the jury for its consideration (see part IV), the defendant’s credibility played only a minor role in the trial. Accordingly, the defendant has not established that the trial court’s evidentiary ruling, even if erroneous, was probably harmful to him.

Our cases have consistently held that impeachment by evidence of prior criminal convictions rests in the sound discretion of the trial court; State v. Schroff, supra, 3 Conn. App. 684; and the trial court’s discretion will be upset by the court only if abuse of that discretion is demonstrated. State v. Crumpton, 202 Conn. 224, 229, 520 A.2d 226 (1987). The defendant has not demonstrated that the trial court abused its discretion.

The defendant urges that we decide this issue on the basis of the fact that the prior conviction was reversed on grounds implicating his factual innocence rather than on technical grounds. He cites two federal cases supporting this view. Smith v. Collins, 964 F.2d 483 (5th Cir. 1992); Gaudin v. Shell Oil Co., 132 F.R.D. 178 (E.D. La. 1990). We do not find these authorities persuasive.

Ill

The defendant next claims that the trial court violated his federal and state constitutional rights to present a defense by refusing to submit his defense of necessity to the jury. A defendant is entitled to a theory of defense charge if he is asserting a recognized legal defense. State v. Rosado, 178 Conn. 704, 707, 425 A.2d 108 (1979). The common law defense of necessity is preserved under the savings clause of General Statutes § 53a-4. State v. Messier, 19 Conn. App. 432, 436-37, 439 n.5, 562 A.2d 1138 (1989). Allowance of the necessity defense in prison escapes mandates unique considerations. “To maintain order in state correctional facilities and court lockups, and to avoid an invitation for facile excuses to attempt escapes from custody, the application of the necessity defense to criminal escapes must be strictly interpreted.” State v. Woods, 23 Conn. App. 615, 620, 583 A.2d 639 (1990).

The seminal case on this issue is People v. Lovercamp, 43 Cal. App. 3d 823, 831-32, 118 Cal. Rptr. 110 (1975). “In Lovercamp, the California court held that, in the context of criminal escape, a limited defense of necessity is available if: ‘(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) there is no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other “innocent” persons in the escape; and (5) the prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.’ ” State v. Woods, supra, 23 Conn. App. 619. Connecticut adopted the Lovercamp test in State v. Woods, supra, 620-21.

The trial court reviewed the evidence on an objective basis. The defendant argues that a subjective basis should be used when deciding whether to submit this defense to the jury. He asks us to hold that, in applying the Lovercamp test, the court should consider the criteria according to the defendant’s perception of the situation rather than as the facts actually were. It is inconsistent with the strict limitations of the necessity defense to determine their satisfaction from the defendant’s subjective point of view.

In the present case, as in Lovercamp, the trial court objectively looked at the evidence and found that, although the defendant testified that he was threatened with substantial bodily injury, he had not reported the threat to prison authorities despite having three days to do so. The defendant also testified to other threats, none of which were reported to prison authorities. In addition, the trial court found that although the defendant was represented by counsel, to whom he had spoken at the jail, he failed to avail himself of the opportunity to resort to the court.

The trial court found that the defendant’s medical complaints were not futile even though they were not answered to his satisfaction. The trial court found that the defendant’s fear of a tuberculosis epidemic was not founded in fact. The defendant would have us believe that his fear of contracting tuberculosis was realized, as shown in a subsequent physical examination. In fact, the subsequent tests showed only that the defendant had been exposed to tuberculosis, not that he had contracted the disease.

The trial court did not address the fourth and fifth Lovercamp prongs because they are applicable only to completed escapes, and the defendant here was charged only with attempt to escape.

The trial court properly applied the Lovercamp factors and correctly concluded that the defendant had failed to demonstrate that he was entitled, as a matter of law, to a jury instruction on a defense of necessity.

IV

In his final claim, the defendant argues that the trial court improperly admitted into evidence two prior convictions of failure to appear. The trial court denied the defendant’s pretrial motion in limine seeking to bar the state’s use of these convictions and allowed them to be admitted for impeachment purposes.

“As a rule, evidence that a criminal defendant has been convicted of crimes on a prior occasion is not generally admissible. . . . There are, however, several well recognized exceptions to this rule, one of which is that ‘[a] criminal defendant who has previously been convicted of a crime carrying a term of imprisonment of more than one year may be impeached by the state if his credibility is in issue.’ ” (Citations omitted.) State v. Crumpton, supra, 202 Conn. 228; State v. Cooper, 227 Conn. 417, 424, 630 A.2d 1043 (1993). By testifying on his own behalf, the defendant put his credibility in issue. “A defendant cannot both take the stand and be immune from impeachment;” State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986).

“Before admitting such evidence, however, the trial court should weigh the following factors: (1) the extent of the prejudice likely to arise; (2) the significance of the commission of the particular crime indicating untruthfulness; and (3) its remoteness in time.” (Internal quotation marks omitted.) State v. Pinnock, 220 Conn. 765, 779-80, 601 A.2d 521 (1992).

“A trial court’s decision denying a motion to exclude a witness’ prior record, offered to attack his credibility, will be upset only if the court abused its discretion. . . .’’(Citations omitted; internal quotation marks omitted.) State v. Crumpton, supra, 202 Conn. 229.

In part II, we addressed the first two factors of this test, prejudice and credibility, and concluded that the defendant had not shown that the trial court’s evidentiary ruling was harmful. We conclude likewise with respect to the present claim. Because his defense of necessity was never before the jury for consideration, the defendant’s credibility on this issue was not a major factor. The defendant does not claim that his conviction for failure to appear were remote in time. We conclude that the trial court did not abuse its discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “criminal attempt: sufficiency of conduct; renunciation as defense, (a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-169 (a) provides in relevant part: “A person is guilty of escape in the first degree (1) if he escapes from a correctional institution . . . .”

       General Statutes § 53a-116 provides in relevant part: “(a) A person is guilty of criminal mischief in the second degree when: (1) With intent to cause damage to tangible property of another and having no reasonable ground to believe that he has a right to do so, he damages tangible property of another in an amount exceeding two hundred fifty dollars . . . .”

       Practice Book § 961 provides: “A defendant shall be permitted to waive his right to counsel and shall be permitted to represent himself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       In the federal case, the defendant had been represented by counsel at trial but appeared pro se at sentencing.

       The issue of the defendant’s credibility was not moot, however. Any time a defendant takes the stand in his own defense, his credibility is subject to scrutiny. State v. McClendon, 199 Conn. 5, 12, 505 A.2d 685 (1986).

       General Statutes § 53a-4 provides: “The provisions 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.”

       Although the court did not ultimately charge the jury on the defense of necessity, it permitted the defendant to place his evidence concerning this defense before the jury.


author: Freedman, J.

text:
    Pasquale D’Onofrio v. Commissioner of Correction
    (13093)
    Dupont, C. J., and Lavery and Freedman, Js.
    Argued November 7, 1994
    decision released January 31, 1995

      Russ F. Marsden, certified legal intern, with whom was Timothy H. Everett, for the appellant (petitioner).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, was Jacqueline J. Footman, assistant state’s attorney, for the appellee (respondent).
   Freedman, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner argues that his conviction for escape from custody must be vacated because General Statutes § 53a-171 does not apply to out-of-state inmates in temporary custody pursuant to the Interstate Agreement on Detainers (IAD), General Statutes § 54-186 et seq. We affirm the judgment of the habeas court.

The habeas court found the following facts. On December 30,1981, a bench warrant was issued by the Superior Court for the arrest of the petitioner on a charge of failure to appear in violation of General Statutes § 53a-172. On May 20, 1983, the petitioner was sentenced to a term of thirty years imprisonment in the state of Oregon on a charge of burglary in the first degree. In June, 1983, the state of Connecticut requested temporary custody of the petitioner from the state of Oregon, pursuant to the IAD, to dispose of the information referenced in the bench warrant dated December 30, 1981.

On or about October 11, 1983, the petitioner was placed in temporary custody in Connecticut. On November 16,1983, the petitioner, along with other prisoners, was transported from the community correctional center in New Haven to the geographical area number five courthouse in Milford. Upon arrival at the courthouse, as the sheriff opened the van door, the petitioner jumped out of the van and ran away. He was captured soon thereafter. On December 6, 1983, the petitioner was arrested on a warrant charging him with escape from custody in violation of § 53a-171.

On January 10, 1984, the petitioner entered a plea of guilty to the charge of escape from custody in connection with the November 16,1983 incident. On January 26, 1984, the petitioner was sentenced to a term of ten years on the escape charge to run “consecutive to the sentence now serving in Oregon.” The original charge of failure to appear for which the petitioner was returned to Connecticut was nolled and on January 28, 1984, the petitioner was returned to Oregon. On March 15, 1991, the petitioner was paroled from his Oregon sentence and on March 18,1991, he entered the custody of the state of Connecticut to serve the sentence imposed in January, 1984.

On June 26, 1992, the petitioner filed an amended petition for writ of habeas corpus. On April 16, 1993, the petitioner filed a request for leave to amend the petition by adding a paragraph claiming that he was not barred from obtaining the relief sought. On November 10,1993, a hearing was held, and on November 19, 1993, the court issued its memorandum of decision. The habeas court held that although the petitioner was not barred from seeking relief, he could not prevail on the merits because, at the time of the escape, he was in the custody of the state of Connecticut and “[t]here is nothing in the language of the statute which would require Connecticut to enact specific legislation enabling it to prosecute IAD transferees.”

The petitioner argues on appeal, however, that “Connecticut courts lack subject matter jurisdiction to hold prosecutions of and impose sentence upon inmates who escape from temporary custody under the . . . [IAD] until and unless the legislature acts to criminalize escape from temporary custody.” In support of this argument, the petitioner attempts to distinguish the meaning of “custody” as used in § 53a-171 and the meaning of “temporary custody” as used in article V of § 54-186. We need not decide whether there is any such distinction, however, because, by pleading guilty to the escape charge, the petitioner has waived his right to pursue this argument.

A valid guilty plea generally operates as a waiver of all defects in the prosecution “except those involving the canvass of the plea and the court’s subject matter jurisdiction.” State v. Reddick, 224 Conn. 445, 451, 619 A.2d 453 (1993); see also State v. Niblack, 220 Conn. 270, 276-77, 596 A.2d 407 (1991); State v. Gilnite, 202 Conn. 369, 374 n.4, 521 A.2d 547 (1987); State v. Satti, 2 Conn. App. 219, 221-22, 477 A.2d 144 (1984). The petitioner argues that his claim implicates the court’s subject matter jurisdiction. We disagree.

“ ‘Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court’s competency to exercise power, and not to the regularity of the court’s exercise of that power.’ (Citations omitted; internal quotation marks omitted.) Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988).” State v. Booker, 28 Conn. App. 34, 39, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992), cert. denied, 507 U.S. 916, 113 S. Ct. 1271, 122 L. Ed. 2d 666 (1993). The court that accepted the petitioner’s guilty plea had the power to hear and determine the criminal matter charging the petitioner with escape in violation of § 53a-171. Therefore, the petitioner cannot prevail on his claim that the court was without subject matter jurisdiction.

We conclude that the petitioner is essentially arguing that the evidence was insufficient on the element of custody to sustain his conviction for escape under § 53a-171. Such a claim is barred, however, by the petitioner’s guilty plea.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-171 (a) provides: “A person is guilty of escape from custody if he escapes from custody.”