author: Dupont, C. J.

text:
    Ralph Crozier v. Riaz Zaboori et al.
    (5756)
    Dupont, C. J., Borden and Foti, Js.
    Argued March 1
    decision released May 24, 1988

      Ralph C. Crozier, pro se, the appellant (plaintiff), with whom was Thomas Gudsnuck.

      Daniel Shepro, with whom, on the brief, was Loraine W. Osborne, for the appellee (named defendant).
   Dupont, C. J.

The plaintiff appeals following the trial court’s denial of his motions to open the judgment and to reargue the facts in this interpleader action. We find no error.

This case stems from the aborted sale of a small dry cleaning business. During the negotiations for the sale, the defendant seller, Charles Falzone, was represented by the plaintiff, Attorney Ralph Crozier, who was also the escrow holder. The buyer, the named defendant Riaz Zaboori, paid a $950 binder fee and deposited $8550 into an escrow account. Zaboori subsequently decided not to purchase Falzone’s business and brought suit against Falzone and Crozier for the return of the deposit held in escrow and for the return of the $950 binder fee.

In his capacity as escrow holder, the plaintiff then brought this separate interpleader action, naming Falzone and Zaboori as codefendants, because he was unable to determine to whom the monies were payable. In his complaint, the plaintiff claimed no interest in the escrow funds and requested the court to determine which party defendant was entitled to the funds. The plaintiff further requested an award for reasonable attorney fees.

The two actions were consolidated for trial and assigned to an attorney trial referee. The referee found that the defendant Zaboori was entitled to a return of his binder fee and his deposit in the amount of $8550, with interest. The referee also concluded that no counsel fees were to be awarded to any party, including the escrow holder. The trial court accepted the referee’s report and on November 12,1985, rendered judgment thereon. On November 13, 1985, the plaintiff filed an objection and a motion to reargue, which motion was granted by the trial court. The referee filed a supplemental memorandum of decision reiterating his position and the trial court rendered judgment on this report on June 16, 1986. The judgments of November 12,1985, and June 16,1986, are identical. On September 80, 1986, the plaintiff filed a motion to reargue and, on October 9, 1986, filed a motion to open judgment. After a hearing, these motions were denied.

The plaintiff raises eleven claims of error on appeal. Ten of these claims of error either challenge the referee’s findings as to whom the money should be paid, or allege a procedural defect in the June 16,1986 judgment. The remaining issue is whether the trial court abused its discretion in denying the plaintiff’s motions to open and to reargue.

We decline to review the ten claims of error which pertain to the June 16, 1986 judgment because they were not raised in a timely appeal, because the defendant Zaboori did not waive his right to object to an untimely appeal, and because the defendant Falzone who is affected by the claims of error has not appealed. The following procedural history is relevant to our decision not to review these claims. The plaintiff filed this appeal on January 5,1987, almost seven months after the judgment of June 16,1986. After the plaintiff filed a preliminary statement of the issues, the defendant Zaboori (hereinafter defendant) made a motion to strike certain issues from the plaintiff’s preliminary statement on the ground that they were not raised by a timely appeal. The defendant Contended that these issues would have been raised properly by an appeal filed within twenty days of the judgment entered on June 16, 1986; Practice Book § 4009; otherwise such issues would have been raised properly only if the plaintiff had filed a motion, within the twenty day appeal period, which would operate to stay the time for appeal. Practice Book § 4009. The defendant argued that because the motions to open and reargue were all filed well beyond the expiration of the twenty day appeal period, the only issue properly reviewable is the decision denying the motions to reargue and to open the judgment.

. After considering the defendant’s motion to strike and the plaintiff’s objection thereto, this court, on March 19,1987, issued a corrected order, treating the motion to strike as a motion to dismiss and granting the motion to dismiss as to that portion of the appeal relating to the judgment of June 16,1986. In fashioning this order, we disagreed with the plaintiff’s assertion that the filing of the motion to reargue on September 30,1986, stayed all applicable appeal dates to December 22,1986. A final judgment was rendered on June 16,1986. The plaintiff’s failure to file an appeal or a motion to open or to reargue within the twenty-day appeal provision precluded him from raising those issues objected to by the defendant in this present appeal. See Practice Book § 4000; Yanow v. Teal Industries, Inc., 196 Conn. 579, 582 n.3, 494 A.2d 573 (1985).

Nevertheless, the plaintiff has briefed and argued these ten issues which pertain to the June 16, 1986 judgment. Pursuant to our order of dismissal, this the plaintiff cannot do. We decline, therefore, to review them. The sole issue properly raised on appeal is whether the trial court abused its discretion in denying the motions to reargue and to open the judgment. Id., 582-83.

“ ‘A motion to open and vacate a judgment filed during the four months after which judgment was rendered is addressed to the court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 612, 153 A.2d 463 (1959).’ Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc. [184 Conn. 461, 466-67, 440 A.2d 159 (1981)].” Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985).

We have carefully reviewed each claim raised by the plaintiff in his motions to reargue and to open judgment. All of these claims attack the conclusions of the referee. The plaintiff sets forth no new assertions, and points to no new evidence which implicates the referee’s conclusions and findings of facts, both of which were previously accepted by the trial court and judgment rendered thereon. The motions merely recited facts and questions of law that the trial court had already specifically accepted.

Moreover, a motion to open is not a substitute for an appeal. A motion to open filed beyond the expiration of the appeal period will not preserve for appeal issues pertaining to the earlier final judgment. Governors Grove Condominium Associates, Inc. v. Hill Development Corporation, 187 Conn. 509, 510 n.2, 446 A.2d 1082 (1982). Where, as here, an appeal from a final judgment has not been seasonably taken, “[cjlaimed errors which might have been assigned on such an appeal are no longer open to review” upon an appeal from a denial of a motion to open that judgment. Zingus v. Redevelopment Agency, 161 Conn. 276, 282, 287 A.2d 366 (1971).

In his brief and at oral argument, the plaintiff further argues that the trial court erred in denying his motions because the pleadings were not closed when judgment was rendered since no interlocutory judgment of interpleader had been granted. This claim lacks merit for two reasons.

First, in his motions to open and reargue, the plaintiff did not raise this ground in his statements in support of these motions. Nor did the plaintiff raise this issue at oral argument on his motions. Therefore, this issue now raised on appeal was not raised in the trial court. Absent plain error, this claim is unreviewable. Aetna Life & Casualty v. Miscione of Connecticut, Inc., 193 Conn. 435, 437-38, 476 A.2d 577 (1984); Valley v. Fazzina, 187 Conn. 423, 428, 446 A.2d 1068 (1982); see also Practice Book §§ 4185, 4187.

Second, the case was tried by the court and all of the parties as an action in interpleader. Where, as here, a case was tried upon a certain theory, we will dispose of the case on the theory on which it was tried and on which the trial court decided it. Machiz v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959). “In disposing of this appeal, we have treated it as it was presented by the parties, disregarding, as did they, certain technical, procedural problems and irregularities . . . . ” Ives v. Burgess, 155 Conn. 698, 699, 231 A.2d 276 (1967).

There is no error.

In this opinion the other judges concurred.

       The defendant Charles Falzone has not appealed from the judgment rendered which required him to pay the defendant Riaz Zaboori the amount of the binder and the deposit with interest. The judgment followed the recommendation of the referee and did not award counsel fees to any party, including the escrow holder.

       The plaintiff has no standing to raise any claims of error challenging the factual findings of the referee relating to the duties, obligations and rights of the codefendants. As escrow holder in an interpleader action, the plaintiff should not have any interest in the judicial orders rendered as between the codefendants. With the exception of his claim that as stakeholder he is entitled to fees and costs, all of the other issues he raises relate to the codefendants. Although the referee concluded that there was no impropriety in the plaintiff acting as escrow holder and as counsel on behalf of defendant Falzone in this consolidated action, the claims of error made on appeal cast doubt on the propriety of the bringing of this interpleader action by the plaintiff.
      “Generally speaking four conditions are necessary to entitle a stakeholder, such as [the] plaintiff, to maintain a bill of interpleader: ‘(1) the same thing, debt, or duty must be claimed by both or all of the parties against whom the relief is demanded; (2) all their adverse titles on claims must be dependent, or be derived, from a common source; (3) the plaintiff must not have or claim any interest in the subject matter; [and] (4) the plaintiff must have incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder.’ 30 Am. Jur. Interpleader § 8, p. 218.” Blanchard v. Voghel, 12 Conn. Sup. 210, 212 (1943). In this case, the plaintiff is not indifferent as to the claims of the codefendants.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Brian Hudson
    (5781)
    Borden, O’Connell and Stoughton, Js.
    Argued January 7
    decision released May 24, 1988

      Monte P. Radler, assistant public defender, for the appellant (defendant).

      James A. Kitten, deputy assistant state’s attorney, with whom, on the brief, was Eugene Callahan, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and assault in the second degree in violation of General Statutes § 53a-60 (a) (2). The defendant claims that the trial court erred (1) in denying the defendant’s motion to suppress pretrial and in-court identifications, (2) in directing the jury to “observe the courtroom” upon completion of the in-court identification, (3) in giving an adverse inference instruction regarding the defendant’s failure to call an alibi witness, and (4) in refusing defense counsel’s request to allow the defendant to stand at the jury box during summation. The defendant also claims that the cumulative impact of the claimed errors deprived the defendant of a fair trial. We find no error.

The jury reasonably could have found the following facts. Shortly after 8 p.m. on January 12,1985, the victim parked her car near an office building in Stamford, intending to visit a friend who was at work within the building. She attempted to enter the building but the door was locked, and her attempts to call to her friend were of no avail. Upon returning to her car, she noticed a man and woman standing near the only other automobile on the block, approximately fifty feet away. As she was about to enter her car, she felt a strong tug at her pocketbook which was slung over her left shoulder. Turning, she saw that a black woman, one of the two people she had noticed at the nearby automobile, was attempting to seize the pocketbook. A tug-of-war ensued until the defendant, a black male, approached brandishing a pistol and commanded, “Give her the purse or I’ll shoot you.” The victim began screaming, and after disregarding a second warning from the defendant she was struck on the head with the gun. As the victim brought her hands up to protect her head, she loosened her grip on the purse and also upon a brown paper bag she was carrying. The female assailant, later identified as Sheila Hudson, the defendant’s sister, yanked the purse from the victim’s arm, and both the defendant and his sister backed away, momentarily stopping to view the contents of the paper bag now lying in the street. The two attackers then turned and ran and, although the victim attempted to pursue them, the defendant and his sister eluded her. One week after the assault, the victim selected the defendant’s photograph from a photo array at the Stamford police station. She also made an in-court identification of the defendant as her male attacker. She later identified Sheila Hudson as her female assailant. Sheila Hudson’s conviction is the subject of the appeal in State v. Hudson, 14 Conn. App. 472, 541 A.2d 539 (1988).

I

The defendant first claims the trial court erred in failing to suppress the victim’s pretrial and in-court identifications of the defendant as one of her assailants.

“The trial court held an evidentiary hearing regarding the identifications and specifically found that none of them was the result of an impermissibly suggestive procedure, and that they were reliable. See, e.g., State v. Vilhotti, 11 Conn. App. 709, 713-18, 529 A.2d 235 (1987). It would serve no useful purpose to recite those findings here. We have fully reviewed the record, and we conclude that those findings are amply supported by the evidence. State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).” State v. Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987).

II

The defendant’s next claim of error concerns the in-court identification of the defendant as one of the victim’s assailants. The victim chose the defendant and his sister from a group of six black males and six black females, seated in a row in the courtroom. The identification occurred outside the presence of the jury, and prior to their being sworn. After the jury was brought in and sworn, the court instructed the jurors to “take a few moments and observe everyone in the courtroom.” The jury was then excused without comment concerning the identification. The defendant argues that this procedure “impermissibly bolstered” the state’s evidence, because the jury was able to view the other subjects of the “lineup” after the victim had identified both the defendant and his sister as her assailants out of the jury’s presence. The defendant’s argument is meritless. “The manner in which in-court identifications are conducted is not of constitutional magnitude but rests within the sound discretion of the trial court.” State v. Smith, 200 Conn. 465, 470, 512 A.2d 189 (1986); State v. Cubano, 9 Conn. App. 548, 555, 520 A.2d 250 (1987). The defendant had requested that an in-court identification occur outside of the jury’s presence, prior to trial. The record indicates that the trial court allowed the jury to observe the people seated in the courtroom so that the twelve people in the lineup were not required to remain in court throughout the suppression hearing which preceded the trial.

The action of the trial court merely ensured that the jury had the benefit of the most accurate picture of the circumstances of the in-court identification, to prevent either party from exploiting the jury’s absence from the procedure. We note further, that the defendant does not raise on appeal the admission into evidence of photographs of the lineup taken by the state’s attorney. “The innate weakness in any in-court testimonial identification is grounds for assailing its weight rather than its admissibility.” State v. Smith, supra, 470. The court neither bolstered the state’s evidence nor abused its discretion in instructing the jury to “observe everyone in the courtroom.”

Ill

The defendant next claims that it was error for the trial court to instruct the jury that it could draw an adverse inference from the defendant’s failure to call certain alibi witnesses. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). We disagree.

After consideration of each party’s request to charge, the trial court rejected the state’s request to give a Secondino instruction concerning the defendant’s failure to produce two alibi witnesses. The court denied the request on the grounds that the state had not established the availability of the witnesses. In response to the denial, the state requested that the court take judicial notice of the fact that one of the alibi witnesses, Pearl Hudson, the defendant’s mother, was present in the courtroom and obviously available to testify. The defendant moved to reopen its case to offer Pearl Hudson’s testimony; the trial court granted the defendant’s motion and Pearl Hudson testified.

The defendant next presented the testimony of Vasco Willis, an investigator with the public defender’s office. Willis testified that he was unable to locate the second alibi witness, the defendant’s brother, Lorenzo Hudson. Willis also related that the defendant’s mother told him that Lorenzo was incarcerated, but that he ascertained that Lorenzo Hudson was not incarcerated at the Bridgeport Correctional Center and that he did not have a telephone listing in New Haven. This evidence was then presented to the jury. The court subsequently delivered a “missing witness” charge regarding Lorenzo Hudson.

“ ‘The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” State v. Ruiz, 202 Conn. 316, 324, 521 A.2d 1025 (1987), quoting Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928). “ ‘ “There are two requirements for the operation of the [Secondino] rule: The witness must be available, and he must be a witness whom the party would naturally produce.” . . .’ ” State v. Howard, 12 Conn. App. 655, 657, 533 A.2d 890 (1987). If the evidence presented is sufficient to support a finding that a missing witness was available to the defendant, the court’s charge was properly given. State v. Howard, supra, 657-58.

The standard which determines a witness’ availability to testify is- “whether there was sufficient evidence to support a finding by the jury that the missing witness was available to the defendant.” State v. Daniels, 180 Conn. 101, 110, 429 A.2d 813 (1980). In Daniels, the state’s attorney questioned the defendant about a potential witness’ whereabouts and elicited the response, “She’s home, I guess.” Id. Our Supreme Court held that “[t]his testimony provided the jury with sufficient evidence to support a finding by it that [the potential witness] was available to the defendant as a witness at the time of trial.” Id.

In the present case, the defendant’s first alibi witness, Pearl Hudson, testified on cross-examination that Lorenzo Hudson resided in New Haven at the time of trial. While this evidence is by no means conclusive on the question of Lorenzo Hudson’s availability, under the standard set in State v. Daniels, supra, we conclude that the evidence was sufficient to support a finding by the jury that the witness was available.

We note that despite the defendant’s argument to the contrary, the testimony of the public defender’s investigator, that he could not locate Lorenzo Hudson, is of no consequence. The investigator testified that he did nothing more in New Haven than check directory assistance for Lorenzo Hudson’s telephone listing. Pearl Hudson testified, however, that Lorenzo did not have a telephone. We conclude such testimony does nothing to bolster the defendant’s allegation that Lorenzo was unavailable to testify. Further, such testimony does not negate the evidence elicited by the state’s attorney that Lorenzo Hudson resided in New Haven at the time of trial.

The defendant also claims that the Secondino instruction shifted the state’s burden of proof in violation of the due process clause of the fourteenth amendment to the United States constitution. This claim is without merit.

Both this court and our Supreme Court have held that questions concerning the propriety of a Secondino instruction do not rise to the level of a constitutional challenge: “In this appeal the defendant suggests that the Secondino charge, ‘even if otherwise proper under local rules of evidence,’ implicates constitutional rights because ‘it violates the presumption of innocence and shifts the burden of proof from the prosecution to the defendant.’ This court, however, has held to the contrary. See State v. Annunziato, 169 Conn. 517, 538, 363 A.2d 1011 (1975); see also State v. Peary, 176 Conn. 170, 182, 405 A.2d 626 (1978), cert. denied, 441 U.S. 966, 99 S. Ct. 2417, 60 L. Ed. 2d 1072 (1979).” State v. Shashaty, 205 Conn. 39, 43-44, 529 A.2d 1308 (1987), affirming State v. Shashaty, 8 Conn. App. 387, 513 A.2d 172 (1986). The trial court’s Secondino instruction was not erroneous.

IV

The defendant next claims that the trial court erred in refusing his request to allow him to stand before the jury box during his counsel’s summation. The defendant’s argument is unpersuasive. “The court, in its discretion, may permit in-court experiments and demonstrations if they will aid the fact finder. State v. Leopold, 110 Conn. 55, 67, 147 A.118 (1929); Tait & LaPlante, Connecticut Evidence § 9.6.” State v. Gooch, 186 Conn. 17, 22, 438 A.2d 867 (1982). In this case, however, the evidence of the defendant’s facial features had been presented during the trial, and the purpose of this request was to permit the jury to observe at close range certain facial characteristics of the defendant after the presentation of evidence had concluded. After reviewing the record we conclude that the trial court did not abuse its discretion in disallowing defendant counsel’s request to stand the defendant before the jury box during summation.

V

The defendant’s final claim of error is that the cumulative effect of the claimed errors deprived him of a fair trial. Because we find that none of the challenged trial court actions was erroneous, we conclude that the cumulative impact of those actions did not deny the defendant a fair trial. See State v. Harris, 182 Conn. 220, 230-33, 438 A.2d 38 (1980); State v. Robinson, 14 Conn. App. 146, 149-51, 539 A.2d 1037 (1988).

There is no error.

In this opinion the other judges concurred.

       The defendant concedes the second requirement of the rule, namely, that Lorenzo Hudson was a witness whom the defendant would naturally have produced to testify.

       The colloquy was as follows:
      “Q: All right. How about Lorenzo, wasn’t he around?
      “A: No. Lorenzo lives in New Haven.
      “Q: Where is Lorenzo now?
      “A: New Haven.
      “Q: He lives in New Haven?
      “A: Yes.
      “Q: How long has he lived in New Haven?
      “A: Over a year now.
      “Q: At the same address?
      “A: No.
      “Q: Do you know whether Brian ever visited him in New Haven or not?
      “A: Brian went up there one time before he was arrested to try to find employment because he was staying up there with Lorenzo looking for a job.
      “Q: Oh, he was living with Lorenzo? In New Haven?
      “A: Yes.
      “Q: Did you know when that was?
      “A: It was back in ‘84.
      “Q: But Lorenzo is still living in New Haven?
      “A: Yes
      “Q: Do you know when the last time you saw Lorenzo was?
      “A: Three weeks ago.”

       We note further that the trial court stated earlier in the proceeding, before the evidence of Lorenzo Hudson’s New Haven residence was elicited, that it allowed a Secondino instruction in a similar case because “there was much discussion about that witness’ residing in the area. I didn’t have any hesitation in that case whatsoever.” It appears that upon hearing the testimony elicited by defense counsel with regard to Lorenzo Hudson’s whereabouts, the trial court changed its opinion of the propriety of the Secondino instruction. In defending its Secondino instruction in response to the defendant’s motion for mistrial, the trial court stated “[TJhere was evidence, if I recall, that [Lorenzo Hudson] lived in New Haven and that he was seen recently in the Stamford area. . . . And he’s part of the defendant’s family.”

       The defendant also claims that the remarks made by the state’s attorney concerning the Secondino instruction were improper. We need not address this claim, however, in light of our conclusion that the instruction was properly given, and in light of the defendant’s failure to present this claim in his preliminary statement of issues filed pursuant to Practice Book § 4013 (a) (1), or in the statement of issues presented in his brief. See Practice Book § 4013; White Oak Corporation v. Department of Consumer Protection, 12 Conn. App. 251, 257 n.ll, 530 A.2d 641 (1987); see also State v. Bell, 13 Conn. App. 420, 426, 537 A.2d 496 (1988) (having failed to preserve claim of prosecutorial misconduct at trial, the defendant is not entitled to review of his claim under either State v. Evans, [165 Conn. 61, 70, 327 A.2d 576 (1973)] or the plain error doctrine).


text:
    State of Connecticut v. Sheila Hudson
    (5491)
    Borden, O’Connell and Stoughton, Js.
    Argued January 7
    decision released May 24, 1988

      Jean Elmblad Blue, special public defender, for the appellant (defendant).

      James A. Killen, deputy assistant state’s attorney, with whom, on the brief, was Eugene Callahan, state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3) and assault in the second degree in violation of General Statutes §§ 53a-8 and 53a-60 (a) (2). The defendant claims that the trial court erred (1) in charging the jury on larceny in the second degree as a lesser included offense of robbery in the first degree, (2) in giving an adverse inference instruction regarding the defendant’s failure to call an alibi witness, (3) in admitting evidence of the victim’s photographic identification of' the defendant as one of her assailants, and (4) in denying the defendant’s motion for a mistrial. We find error in part.

The defendant and her brother, Brian Hudson, were tried together for the January 12, 1985 robbery and assault of Sandra Gilbane. See State v. Hudson, 14 Conn. App. 463, 541 A.2d 534 (1988). The jury reasonably could have found the following facts: Shortly after 8 p.m. on January 12, 1985, the victim was assaulted by a black woman and a black man as she attempted to enter her automobile outside an office building in Stamford. The woman attempted to remove the victim’s purse from her shoulder, and, when she resisted, the man struck her on the head with what appeared to her to be a revolver. Although the victim did not positively identify her assailants from police photographs viewed the night of the assault, she did identify both the defendant and Brian Hudson after viewing additional photographs one week later. A more detailed discussion of the pertinent facts is contained in State v. Hudson, supra, 464-65.

I

The defendant first claims error in the trial court’s instruction to the jury on the lesser included offense of larceny in the second degree.

The defendant went to trial on a substitute information charging, inter alia, robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). Due to the insufficiency of evidence regarding the presence of a deadly weapon, the court directed the jury to find the defendant not guilty of robbery in the first degree, and granted the state’s request to instruct the jury on larceny in the second degree under General Statutes § 53a-123 (a) (3). Section 53a-123 provides in pertinent part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119; and: . . . (3) the property, regardless of its nature or value, is taken from the person of another.” (Footnote added.) The defendant objected to the state’s request on the grounds that she had not been put on notice that she would be exposed to a possible conviction of larceny in the second degree. The court overruled the defendant’s objection, and the defendant excepted. We agree with the defendant.

“In State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), the court set out four conditions which must be met before a party is entitled to an instruction on a lesser included offense: ‘(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ Id., 588. (Footnote omitted.) In this case, it is the second Whistnant criterion with which we are concerned.” State v. Kitt, 8 Conn. App. 478, 486-87, 513 A.2d 731 (1986), cert. denied, 202 Conn. 801, 518 A.2d 648 (1987), see also State v. Gonzalez, 14 Conn. App. 216, 221, 541 A.2d 115 (1988). Simply stated, the issue is whether the defendant was given notice of the charge of larceny in the second degree by the information which charged her with robbery in the first degree.

When examining a claim of insufficient notice of a lesser included offense, we are limited to an examination of the charging documents, and do not examine the evidence presented at trial. State v. Jacobowitz, 182 Conn. 585, 593, 438 A.2d 792 (1981); State v. Kitt, supra, 487. The substitute information on which the defendant went to trial stated in pertinent part that “on or about the twelfth day of January 1985, at or about 8:25 p.m. at premises known as # 25 Third Street, the said SHEILA HUDSON stole certain-property from one SANDRA GILBANE, to wit: current monies of the United States of America, and in the course of the commission of the crime, displayed and threatened the use of what she represented by her words or conduct to be a firearm, in violation of § 53a-134 (a) (4) of the Connecticut General Statutes.” (Emphasis added.) We must determine if it would be possible to “[steal] certain property from [a victim],” without taking property from “the person of [the victim].”

The defendant’s claim is foreclosed by In re Juvenile Appeal (84-4), 1 Conn. App. 642, 474 A.2d 485 (1984), and State v. DeMatteo, 13 Conn. App. 596, 538 A.2d 1068 (1988). In those cases, we held that, because larceny from the person requires a taking from the victim’s person as opposed to a taking from his presence or control, larceny in the second degree under § 53a-123 (a) (3) is not ordinarily a lesser included offense of robbery, the larceny component of which does not require such a taking.

For example, this court held in In re Juvenile Appeal (84-4) that the trial court erred in concluding that a respondent who had removed a victim's radio from the victim’s presence, while an accomplice held a knife to the victim’s throat, had committed larceny in the second degree pursuant to General Statutes § 53-123 (a) (3). “ ‘In [the] view [of our Supreme Court], larceny from the person requires an actual trespass to the person of the victim. ... On the other hand, the removal of property from the presence or control of the victim lacks such a trespass and is insufficient to constitute larceny from the person. . . . [L]arceny from the person is a separate and distinct offense from that of simple larceny.’ ” (Emphasis in original.) In re Juvenile Appeal (84-4), supra 645, quoting State v. Crowe, 174 Conn. 129, 134, 384 A.2d 340 (1977).

Contrary to the state’s argument, the use of the term “stole” in the information does not supply the defendant with sufficient notice of the “separate and distinct offense” of “taking property from the person” of the victim. One can easily envision countless scenarios in which the defendant “steals” property from the victim as described in this particular information, without actually removing it from the victim’s person. Indeed, we have held that the word “steal” means “to commit larceny.” Lauder v. Peck, 11 Conn. App. 161, 165, 526 A.2d 539 (1987). We conclude that the information did not put the defendant on notice of the second degree larceny charge and, therefore, it was error to instruct the jury on larceny in the second degree.

II

The defendant next claims that the trial court erred in instructing the jury that it could draw an adverse inference from the defendant’s failure to call an alibi witness. Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960). We disagree.

The defendant claimed as an alibi defense that on the night of the crime she was with her sister, Jackie Hudson, visiting Everett Hodge, a family friend. Hodge testified on the defendant’s behalf, but the defendant failed to call Jackie Hudson to testify.

A party is entitled to a so-called “Secondino instruction,” whenever it is shown that a witness is available, and is a witness whom the party in question would naturally produce. State v. Hudson, supra, 468; State v. Howard, 12 Conn. App. 655, 657, 533 A.2d 890 (1987). Because the state satisfied its burden of proving both prerequisites, the Secondino instruction was properly given.

The record indicates that prior to the commencement of the trial defense counsel was cognizant of Jackie Hudson’s whereabouts. The following brief colloquy indicates that the witness at issue was in fact available;

“[Defense Counsel]: Your Honor, I spoke with [the defendant] this morning and there is a possibility that her sister, Jackie Hudson, may be called as a witness. I’d ask Your Honor please if you would mention that to the jury.
“The Court: Are there any other witnesses that the court should mention? We have Jackie Hudson and Jackie Hudson’s address is?
“[Defense Counsel]: She’s from Stamford, Your Honor, Hope Street.”

The record also indicates that the defendant’s mother, Pearl Hudson, testified that she knew the telephone number and address of Jackie Hudson’s employer, as of July 31,1985, only two days before she appeared in court to testify. Further, there was no testimony presented by the defendant that the number had changed or that the defendant’s mother was unwilling to give it to the defendant, if requested. The trial court appropriately concluded that there was sufficient evidence from which the jury reasonably could find that the witness was available. See State v. Hudson, supra, 469-70; State v. Watley, 195 Conn. 485, 489, 488 A.2d 1245 (1985).

The record also shows that Jackie Hudson was the only person claimed to be present with the defendant between 7:30 and 10 p.m. on the night of the assault. Such a critical witness would be one naturally produced to support the alibi testimony. The defendant’s arguments that Jackie Hudson was an “inferior” witness, because her credibility as the defendant’s sister could be questioned, and because her testimony would be “cumulative,” is without merit. “The testimony of an additional witness upon a significant disputed issue can hardly be characterized as cumulative. State v. Reid, 193 Conn. 646, 662, 480 A.2d 463 (1984). . . . Though each party is ordinarily empowered to place an available witness on the stand, such a witness often may be expected to furnish testimony more favorable to one side than the other. . . . We do not equate the requirement that the witness be one whom a party would naturally produce with the judgment of counsel that the witness would be effective.” (Emphasis in original; citation omitted.) State v. Ruiz, 202 Conn. 316, 325, 521 A.2d 1025 (1987). We conclude that the trial court did not err in giving the Secondino instruction.

III

The defendant’s third claim of error is that evidence of the photographic identification of the defendant made by the victim should have been suppressed. We disagree.

“ ‘The trial court held an evidentiary hearing regarding the identifications and specifically found that none of them was the result of an impermissibly suggestive procedure, and that they were reliable. See, e.g., State v. Vilhotti, 11 Conn. App. 709, 713-18, 529 A.2d 235 (1987). It would serve no useful purpose to recite those findings here. We have fully reviewed the record, and we conclude that those findings are amply supported by the evidence. State v. Mitchell, 204 Conn. 187, 203, 527 A.2d 1168, cert. denied, U.S. , 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987).’ State v. Daniels, 13 Conn. App. 133, 135, 534 A.2d 1253 (1987).” State v. Hudson, supra, 466.

IV

The defendant’s final claim of error alleges that the trial court impermissibly requested that the jury “observe everyone in the courtroom,” immediately after an in-court identification of the defendant and her codefendant had occurred. We find no abuse of the trial court’s discretion in the manner in which it conducted this identification procedure, and conclude that our ruling on the identical claim made by Brian Hudson, the codefendant in this case, is dispositive of this matter. See State v. Hudson, supra, 466-67.

There is error in part, the judgment is set aside as to the conviction of larceny in the second degree only and the case is remanded with direction to render judgment of not guilty on the first count of the substitute information.

In this opinion the other judges concurred.

       The defendant was originally charged with robbery in the first degree, General Statutes § 53a-134, and larceny in the second degree, General Statutes § 53a-123. The state then amended that information to charge robbery in the first degree, General Statutes § 53a-134 (a) (4), and assault in the second degree, General Statutes § 53a-60 (a) (2). A subsequent information was filed which charged the defendant with the crimes he faced at trial, namely robbery in the first degree, General Statutes § 53a-134 (a) (4), and assault in the second degree, General Statutes §§ 53a-8 and 53a-60 (a) (2).

       General Statutes § 53a-119 provides in pertinent part that “[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.”

       We note that although the defendant’s trial counsel argued that the fourth, rather than the second criterion of the Whistnant analysis had not been met, the defendant’s appellate counsel contends that such argument was the result of confusion concerning the analysis. The state concedes that the defendant’s appellate argument regarding the second criterion of the Whistnant analysis is reviewable, citing State v. Kristy, 11 Conn. App. 473, 481, 528 A.2d 390 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988). We agree with the parties that such a claim would be reviewable, both in light of the defendant’s objection and exception, and in the absence of a proper exception, under the Evans doctrine as noted in State v. Kristy, supra.

       For example, the defendant could force the victim to allow the defendant access to the victim’s bank account by requiring the victim to open her account through an automatic bank teller machine. If the defendant then proceeded to withdraw monies from the victim’s account, the defendant would thereby “steal” money from the victim without committing larceny in the second degree. Further, any scenario in which a defendant would remove property from the presence or control of the victim without committing a physical trespass, could satisfy the language of the information, without constituting a “taking from the person.”

       The defendant also alleged that the Secondino instruction impermissibly shifted the burden of proof in violation of the defendant’s due process rights under the federal constitution. We addressed this claim thoroughly in State v. Hudson, 14 Conn. App. 463, 470-71, 541 A.2d 534 (1988) and, as the defendant in that case relied upon this defendant’s brief for his argument, we conclude that our discussion in that case necessarily resolves any claims raised in the present appeal with regard to this issue.


text:
    Syncsort, Inc. v. Indata Services et al.
    (5648)
    Bieluch, O’Connell and Foti, Js.
    Argued January 19
    decision released May 24, 1988

      Robert L. Teicher, for the appellant (named defendant).

      Judith H. Rothschield, with whom, on the brief, was M. Jeffry Spahr, for the appellee (plaintiff).
   O’Connell, J.

This is the defendant’s appeal from a judgment rendered in the plaintiff’s favor in an action concerning a computer program licensing agreement. The case was tried to the court on a written stipulation of facts, of which the following are relevant to disposition of this appeal. On March 14,1984, the plaintiff installed a computer program, Sydoc, in the defendant’s office. In late April of 1984, the defendant licensee signed a three year license agreement and schedule pertaining thereto. By its terms, the agreement became effective upon acceptance by the plaintiff licensor. This acceptance occurred on May 3, 1984, fifty days after the installation date. The agreement called for licensing fees of $4300 the first year and $6300 each for the second and third years, for a total fee of $16,900.

The agreement also established a sixty day acceptance period during which the defendant could terminate the license without financial obligation. The acceptance period was defined as commencing on the date of installation. In the event of termination, a licensee was required “promptly [to] certify to [the plaintiff] in writing that [the] licensee has permanently eliminated the product from its computers, tapes, disks or any other data storage media and that licensee has ceased the use of the product.” The license agreement consisted of standardized language contained in the plaintiff’s preprinted forms.

On May 31,1984, the plaintiff sent the defendant an invoice for $4300. On June 26, 1984, the defendant informed' the plaintiff by letter that it was terminating the agreement and certified that it would permanently eliminate the plaintiff’s program from its computer storage media. On or after June 26, 1984, the defendant returned the use manuals and tape to the plaintiff.

Shortly after receipt of this letter, the plaintiff informed the defendant that the letter was not being accepted as a termination of the license agreement. On October 16, 1984, the plaintiff sent the defendant á statement of account for the $4300 first payment, and on April 30,1985, an invoice for the $6300 second payment. None of the amounts claimed by the plaintiff has been paid by the defendant.

On October 9, 1985, the plaintiff commenced this action claiming to have accelerated the payment of the entire $16,900 due under the contract because of the defendant’s alleged default. Such acceleration was allowed under the contract, upon termination of the agreement by the plaintiff. The plaintiff never terminated the contract, however, but instead treated it as ongoing and billed the defendant for payments as they came due. The case was tried on a six count amended complaint containing a prayer for relief seeking “specific performance of the License Agreement and License Schedule.”

The trial court found “that the plaintiff is properly entitled to the entire amount due, plus attorney’s fees in the amount of $2609.50 and costs.”

The defendant appeals claiming that the court erred (1) in ruling that the plaintiff was entitled to accelerate the fees due for the full term of the license agreement, (2) in ruling that time was of the essence in connection with the cancellation set forth in paragraph fourteen of the license agreement, (3) in ruling that the cancellation deadline under paragraph fourteen of the license agreement was not ambiguous, (4) in refusing to find an implied term in the license agreement that the cancellation period under paragraph fourteen was to commence on April 30, 1984, (5) in ruling that the license agreement was not divisible, and (6) in awarding attorney’s fees to the plaintiff. We find error.

We first note that by bringing an equitable action for specific performance the plaintiff brings all principles of equity into consideration, not merely those raised by the parties. See 27 Am. Jur. 2d, Equity §§ 103,105, and cases cited therein. The licensing agreement provided that its validity, construction and interpretation would be governed by the laws of the state of New York. This does not interfere with the application of equitable principles, however, because § 1-103 of the New York Uniform Commercial Code expressly provides: “Unless displaced by particular provisions of this title, the principles of law and . . . equity supplement its provisions.” (Emphasis added.) See Trowbridge v. Malix Realty Co., 198 App. Div. 656, 191 N.Y.S. 97 (1921); Caspert v. Anderson Apartments, Inc., 196 Misc. 555, 94 N.Y.S.2d 521 (1949). Contract clauses which require the application of the laws of other states upon breach or dispute are recognized as proper in Connecticut. Gannett Co., Inc. v. Register Pub. Co., 428 F. Sup. 818 (D.C. Conn. 1977); see also General Statutes § 42a-l-105 (1).

Although the defendant was in possession of the computer program materials for only a small fraction of one year, the plaintiff seeks to recover payments for all three years of the agreement, notwithstanding the fact that all materials had been returned to the plaintiff and were therefore available for license to others. The defendant had in fact used the product only once.

It is readily apparent that requiring the defendant to pay three years license fees for a program which, by stipulation, was used only once and then returned, would result in an unconscionable windfall for the plaintiff. The situation is analogous to litigation concerning liquidated damage clauses which purport to allow one party to retain a disproportionately large deposit following a contract breach. New York courts have long refused to enforce liquidated damage clauses when to do so would allow a seller to be unjustly enriched by retaining, as damages, money vastly exceeding the loss suffered. See Truck Rent-A-Center, Inc. v. Puritan, 41 N.Y.2d 420, 426-27, 361 N.E.2d 1015, 393 N.Y.S.2d 365 (1977); 36 N.Y. Jur. 2d, Damages § 154 et seq. In the present case, however, the trial court did not address the matter of whether the liquidated damages clause in the contract in question was “so exorbitant as to be in the nature of a penalty.” P.J. Carlin Construction Co. v. New York, 59 App. Div. 2d 847, 848, 399 N.Y.S.2d 13 (1977). We determine that this issue is dispositive of the appeal, and find that the clause in question did create a penalty upon breach, and as such was unenforceable. Truck Rent-A-Center, Inc. v. Puritan, supra.

“Generally, where a contract contains a liquidated damage's clause, the party seeking to repudiate that clause must show that the agreed damage is so exorbitant as to be in the nature of penalty.” P.J. Carlin Construction Co. v. New York, supra. The defendant has sustained its burden of proof by showing, inter alia, that it retained the program for only two months, was allowed only ten days after the plaintiffs approval of the license agreement in which to cancel without obligation, and had used the program only once. Under these circumstances, the trial court erred in finding the defendant liable for the entire amount due under the contract, and in failing to weigh the equities of the case before it. Under New York law, “the granting of relief by a decree requiring specific performance of a contract rests in the sound discretion of the court before which the application is made, which discretion is to be exercised upon a consideration of all the circumstances of the case.” (Footnotes omitted.) 55 N.Y. Jur., Specific Performance § 5, pp. 435-36 and cases cited therein. It is a settled principle of appellate law generally, and of the law of New York in particular, that the exercise of judicial discretion ordinarily will not be interfered with on appeal. Nitz v. Prudential-Bache Securities, Inc., 102 App. Div. 2d 914, 915, 477 N.Y.S.2d 479 (1984); Rosen Trust v. Rosen, 53 App. Div. 2d 342, 366, 386 N.Y.S.2d 491 (1976); see also Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983); DeSantis v. Piccadilly Land Corporation, 3 Conn. App. 310, 315-16, 487 A.2d 1110 (1985). It is also a well established principle of New York law, however, that specific performance should not be ordered when enforcement of the contract will beget an inequitable result. “[0]ne of the general rules formulated and followed is that this equitable relief will not be granted if, under the circumstances, either because of the inequitable character of the contract or other reason, the result of the specific enforcement of the contract would be harsh, inequitable, oppressive, or unconscionable.” (Footnote omitted.) 55 N.Y. Jur., Specific Performance § 34 and cases cited therein. An examination of the equities would have shown 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.

There is error, the judgment is set aside and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion the other judges concurred.

       The defendant’s letter of June 26,1984, incorporated into the parties’ stipulation of facts, read as follows:
      “Mr. Jeffrey Michals SYNCSORTINC.
      560 Sylvan Avenue Englewood Cliffs, NJ 07632 Dear Jeff:
      At this time I have to inform you that INDATA will terminate its’ initial license agreement for your product ‘SYDOC’. I understand that we have the right to do so within 60 days with no financial obligations.
      Since we have had your product installed, we have used it only once. I can not justify the expense of this product when our usage is so low.
      In agreement with your termination policy, I wil scratch all ‘SYDOC’ libraries and return all manuals and tapes.
      Sincerely,
      John J. Waranis”

       The plaintiff indicated at oral argument that although the prayer for relief also requested money damages, the primary interest of the plaintiff was in specific performance.

       The court found the individual defendant, president of the defendant corporation, was acting as agent for a disclosed principal and was therefore not liable to the plaintiff.

       The New York statute is identical to Connecticut General Statutes § 42a-1-103.

       See footnote 1, supra.

       We further note that the plaintiff’s claim for money damages under the liquidated damages clause would also fail, as the defendants have met their burden of proving that the payment required under the clause would be “so exorbitant as to be in the nature of a penalty.” P.J. Carlin Construction Co. v. City of New York, 59 App. Div. 2d 847, 399 N.Y.S.2d 13, 14 (1977); Truck Rent-A-Center v. Puritan, 41 N.Y.2d 420, 361 N.E.2d 1015, 393 N.Y.S.2d 365 (1977). See footnote 2, supra.


text:
    Monica Fischer v. Robert P. Goldstein
    (4669)
    Spallone, O’Connell and Norcott, Js.
    Argued February 2
    decision released May 24, 1988

      Robert P. Goldstein, pro se, the appellant (respondent).

      William J. Wholean, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (petitioner).

      Paul M. Paiten filed a brief for the appellee (petitioner).
   O’Connell, J.

The respondent father appeals from a decision of the trial court rendered pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA); General Statutes §§ 46b-180 through 46b-211; finding paternity of his illegitimate child now living in the Federal Republic of Germany. General Statutes § 46b-180 et seq. The trial court found the Federal Republic of Germany (hereinafter West Germany) to be a “state” within the meaning of General Statutes § 46b-180 (12). The respondent had previously filed and appealed from the denial of a writ of habeas corpus to determine the custody of the child. Dismissal of the habeas corpus action for lack of personal jurisdiction was affirmed by our Supreme Court. Goldstein v. Fischer, 200 Conn. 197, 510 A.2d 184 (1986).

The present action was commenced in 1983 for the support of the child when the requisite URESA documents were sent to the Connecticut Superior Court by the initiating court in West Germany. On October 21, 1985, the Superior Court ordered the respondent to pay child support. The respondent appeals claiming the trial court erred (1) in establishing a duty of support since an adjudication of paternity was never made nor was there a finding that paternity was previously established, (2) in not finding that the respondent was denied due process of law as guaranteed by the United States and Connecticut constitutions, (3) in not finding that the respondent was denied equal protection of the law as guaranteed by the United States and Connecticut constitutions, (4) in not finding that the respondent was deprived of the privileges and immunities guaranteed to all citizens of Connecticut and of the United States, and (5) in granting the petitioner’s motion for support. We find no error.

I

In his first claim of error, the respondent argues that no formal adjudication of paternity had been made in this action nor had paternity previously been established. An examination of the transcript discloses that this statement is incorrect. The trial court expressly found that “[t]he existence [of facts] necessary for paternity is found” and also that “the gentleman is the father of the child.” Any possible, but certainly not probable, ambiguity in the trial court’s intention in making these remarks was removed by the court’s clear enunciation in its articulation that “[o]n September 23, 1985, the court made a finding of paternity.” Further, throughout the trial court proceedings, the respondent expressly and repeatedly acknowledged that he was the father of the child. The defendant also unequivocally declared that he was the father in his pro se appearance before this court.

The respondent’s repeated declarations, some of which were under oath, furnished a sufficient foundation for the trial court’s determination of paternity. It would be unrealistic to expect the trial court to listen to the respondent’s fervent declarations that he was the father and then to hold that he was not. This court also refuses to participate in such judicial folly.

Moreover, the trial court in the present case could take judicial notice of the trial court file in the prior habeas corpus proceeding; State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1964); in which the respondent averred, “I am the father of the illegitimate child, Esther Fischer, born 6 March 1982.”

■ The law does not require that an acknowledgement of paternity meet the formal requirements of General Statutes § 46b-172 to serve as the basis for a paternity determination. State v. Wolfe, 156 Conn. 199, 206, 239 A.2d 509 (1968). There are three exceptions to this rule: (1) paternity proceedings brought by the mother, pursuant to General Statutes § 46b-160; (2) proceedings by a putative father, pursuant to General Statutes § 46b-172a; and (3) voluntary acknowledgement of paternity, pursuant to General Statutes § 46b-172. No authority can be found to support the respondent’s contention that paternity can only be established through proceedings pursuant to General Statutes §§ 46b-172, 46b-172a and 46b-173.

The fact that this is a URESA action and not a traditional paternity proceeding is no impediment to the trial court’s finding of paternity. It is well established that a court sitting in a URESA proceeding has jurisdiction to determine paternity. See annot., 81 A.L.R.3d 1175, Determination of Paternity of Child as Within Scope of Proceeding Under [URESA].

II

The remainder of the claims of error are subsumed in the respondent’s argument that because West Germany will not grant him visitation rights, the courts of the United States are constitutionally barred from finding that he is the father of the illegitimate child residing in that country. The defendant apparently claims that this barrier precludes the court from finding that the defendant owes a duty of support to the child. We conclude that these claims are beyond the scope of a URESA action and, therefore, are not within the scope of permissible review.

The defendant’s argument presumes that support payments are conditioned on the ability to exercise visitation rights. This is not the law. “The duty to support is wholly independent of the right of visitation.” Raymond v. Raymond, 165 Conn. 735, 742, 345 A.2d 48 (1974). This established principle is followed in other jurisdictions adjudicating URESA-based litigation. See, e.g., Moffat v. Moffat, 27 Cal. 3d 645, 612 P.2d 967, 165 Cal. Rptr. 877 (1980); State ex rel. Sauer v. Hellesvig, 376 N.W.2d 503 (Minn. App. 1985).

The sole purpose of URESA is the provision of child support, not visitation. “This duty of support is the only subject matter covered by URESA. Nothing in the act allows the adjudication of child custody or visitation privileges or other matters commonly determined in domestic relation cases.” Pifer v. Pifer, 31 N.C. App. 486, 489, 229 S.E.2d 700 (1976). In view of the holding in Raymond v. Raymond, supra, that the duty of support and privilege of visitation are unrelated, the respondent’s contention that West Germany’s denial of visitation rights and other parental privileges renders this court constitutionally powerless to declare paternity and support, is simply without merit. A similar constitutional challenge was raised in State ex rel.

Sauer v. Hellesvig, supra, which also concerned a URESA petition for support of an illegitimate child born to a West German resident. The Minnesota court held therein that the duty of support is independent of any visitation privileges, that the trial court was without jurisdiction to decide issues of visitation, and that the respondent father should pursue his remedies in the jurisdiction most able to promote the best interests of the child, which is the jurisdiction of the child’s residence. See also Kline v. Kline, 260 Ark. 550, 551, 542 S.W.2d 499 (1976).

We agree with the Minnesota court’s ruling and note that the petitioner in the present case is not without redress. “German law does . . . provide a remedy for [the respondent] under 4 Burgerliches Gesetzbuch § 1711 (W. Ger.). That section sets out the procedures for establishing personal contact between a father and his illegitimate child. Initially, the person caring for the child decides if the father will have visitation rights. In the event of his dissatisfaction, the father can petition the West German Guardianship Court to determine if visitation would serve the welfare of the child .... While this remedy may be inconvenient and expensive, it is available to [the respondent].” State ex rel. Sauer v. Hellesvig, supra, 506. We conclude that it would be wholly inappropriate for this court to delve into matters beyond the scope of URESA. Accordingly, we decline to give further review to the respondents constitutional claims.

There is no error.

In this opinion the other judges concurred.

       The amount of the support orders entered at the same time are not the subject of this appeal, but the right of the court to enter any support orders is inextricably interrelated with the issue of the court’s right to determine paternity.

       The habeas corpus action was commenced under the Uniform Child Custody Jurisdiction Act, General Statutes § 46b-90 et seq.

       The German Institute for Guardianship in Heidelburg.

         General Statutes § 46b-173 relied upon by the petitioner, merely provides for the filing of agreements entered into pursuant to General Statutes § 46-172, and does not present an additional means of determining paternity.

       Although the defendant relies on both the federal and state constitutions, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state claims. We decline to undertake such analysis. State v. Carey, 13 Conn. App. 69, 72 n.1, 534 A.2d 1234 (1987).

       In URESA cases, this court gives great weight to decisions from other jurisdictions in compliance with the mandate of General Statutes § 46b-209, which provides that “[t]his part shall be so construed as to effect its general purpose to make uniform the laws of the sjtates which enact it.”


author: Daly, J.

text:
    State of Connecticut v. Edwin Ortiz
    (5500)
    Daly, O’Connell and Nokcott, Js.
    Argued November 19, 1987
    decision released May 24, 1988

      James V. Guarino, special public defender with whom was Susan P. Geenty, for the appellant (defendant).

      Mitchel S. Brody, deputy assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (3), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3).

On appeal, the defendant claims that the trial court erred: (1) in determining that there was sufficient evidence to establish the defendant guilty beyond a reasonable doubt; (2) in denying the defendant’s motion to dismiss; (3) in admitting a certain stick into evidence; (4) in denying the defendant’s motion to suppress a wallet found on the ground; and (5) in failing to instruct the jury on the lesser included offenses of robbery in the third degree and larceny in the second degree.

The jury could reasonably have found the following facts. On July 29, 1985, at approximately 1 p.m., Thadeuz Rzap and Stephen Shields were released from Connecticut Valley Hospital following their treatment for alcoholism. The two men embarked on a drinking escapade which led them wandering throughout Middle-town. At approximately 1 a.m., they fell asleep in a grassy portion of Spears Park in Middletown.

Rzap was awakened when he and Shields were attacked by a Hispanic male and a black male. Both Rzap and Shields were beaten with a black stick, kicked and punched. As the attackers left their victims, a striking sound was heard in the vicinity of a wrought iron fence after a throwing movement by the taller man. Rzap fled from the park and called the police at a nearby newsstand. Rzap suffered welts to his arms and body with bruises on his forehead, while Shields was rendered unconscious and suffered a brain injury. Rzap’s wallet, which was attached to a chain, and his sneakers were taken from him.

Officer Graig Elkin of the Middletown police department responded to the call by meeting Rzap at the newsstand and proceeded to Spears Park. At the scene, Elkin found Shields unconscious and unresponsive. A stick was discovered nearby, leaning against one of the walls of the park. As Officer Joseph Waite proceeded to the scene, he spotted two individuals, a black male and a shorter Hispanic male, who matched the descriptions provided by Elkin on the radio. Waite stopped the two individuals, identified as Michael Foster and the defendant, and patted them down. During the patdown, Waite discovered a chain running from the defendant’s belt to a square object in his pocket. Waite proceeded to take the square object out of the defendant’s pocket and, after looking through the object, which he determined was a wallet, he returned it. At this point, Officer David Cristiana arrived and observed Foster pulling his hands away from some bushes. Cristiana pulled a pair of sneakers out of the bushes and brought them to Spears Park where Rzap identified them as the ones taken from him during the assault.

The defendant and Foster agreed to accompany Waite to Spears Park. After discussing the missing wallet with Rzap, Waite again patted down the defendant but did not feel either the chain or square object. Ten minutes later, Waite returned to the scene of the first patdown and found a wallet on the ground with a chain attached to it five feet from the patdown.

At trial, Rzap identified the wallet as the one taken from him during the assault. The state introduced photographs of the bushes where the sneakers had been found, and of Spears Park. In addition to the photographs, the state introduced into evidence the stick found near the scene of the crime.

I

In his first claim of error, the defendant argues that there was insufficient evidence to support the jury’s guilty verdict of assault in the first degree against Shields and assault in the second degree and robbery in the first degree against Rzap. The defendant maintains, inter alia, that no identification of him was established, that there was a failure to connect the stick with the offenses and that there was a lack of causation between Shield’s injury and the attack.

A

The defendant was convicted of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and 53a-8, with respect to victim Shields. “ ‘When a claim on appeal challenges the sufficiency of the evidence, we undertake a two part task. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the jury’s verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ [State v. Simino, 200 Conn. 113, 116, 509 A.2d 1039 (1986)].” State v. Summerville, 13 Conn. App. 175, 184-85, 535 A.2d 818 (1988).

Applying this standard to the record before us, we conclude that the evidence reasonably supports the jury’s conclusion. An eyewitness testified that both victims were kicked and beaten by a tall black male and a shorter Hispanic male. The defendant and Foster were picked up in the vicinity of Spears Park shortly after the incident. It was a reasonable inference that the defendant was present at the assault since the sneakers and wallet were at the scene where he was originally stopped by the police. The state did not have to connect the stick with the defendant since it was not a necessary element of the offense. Likewise, the state did not have to prove that the defendant brandished the stick, even if it were an element of the offense, since the defendant was being charged as an accessory.

B

The defendant was convicted of assault in the second degree in violation of General Statutes § 53a-60 (a) (2) and robbery in the first degree in violation of General Statutes § 53a-134 (a) (3) with respect to victim Rzap. Rzap sustained welts on his back and arms with bruises on his forehead from being punched, kicked and hit with a stick-like object. In addition to being assaulted, Rzap was robbed of his wallet and sneakers. It is important to note that the defendant was charged as an accessory to the assault and, therefore, the state did not have to prove that he actually beat the victim with the stick. Moreover, it was not necessary to prove that the defendant wielded the stick during the robbery, because the accessory statute applies to any participant in the crime. Using the above standard in reviewing the sufficiency of evidence, we conclude that the jury could readily have inferred that the defendant was guilty of the crimes charged.

II

The defendant’s second claim of error entails a speedy trial issue. The defendant claims that the trial court erred in failing to dismiss the matter due to the state’s failure to prosecute in a timely manner. The defendant was arrested and incarcerated on July 30, 1985. An information was filed on July 31, 1985. On April 8,1986, the defendant filed a motion to dismiss pursuant to Practice Book § 956B (b) claiming that eight months had elapsed since his arrest without a trial.

The trial court, on May 20,1986, denied the motion determining there were eighty-seven days which could be excluded in calculating the eight months. The defendant argues that retroactive computation of time was improper and, additionally, that only the actual days when the hearings were held should be calculated.

Practice Book § 956C provides that any “delay resulting from the hearing on any pretrial motion” is excluded in computing the time within which a trial shall commence under § 956B. Practice Book § 6 provides that the rules are to be liberally construed. The rules, however, do not provide that excludable time notations be made simultaneously by the trial court or be waived. Moreover, there is nothing in the rules that limits delays resulting from a hearing to the hearing time itself. In the interest of reading the rules liberally, we hold that the trial court did not err in denying the defendant’s motion to dismiss.

Ill

The defendant’s third claim of error is that the trial court erred by improperly admitting into evidence a stick found near the scene of the crimes charged. Specifically, the defendant argues that the introduction of the stick was irrelevant and prejudicial. Evidence is relevant if it “ ‘tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ ” State v. Fritz, 204 Conn. 156, 168, 527 A.2d 1157 (1987). Determinations of relevancy are within the broad discretion of the trial court and will not be overturned in the absence of clear abuse of discretion. Id., 167-68. In making such determinations, a trial court is not required to find as a prerequisite to admissibility that evidence is conclusively linked to other evidence. “Evidence is not rendered inadmissible simply because it is not conclusive. It is admissible if it tends to support a relevant fact even in a slight degree, so long as it is not prejudicial or merely cumulative. . . . The defendant’s objection goes essentially to the weight of the evidence rather than to its admissibility.” State v. Morrill, 197 Conn. 507, 548-49, 498 A.2d 76 (1985).

In the present case, the introduction of the stick into evidence was necessary to support “relevant facts” in the crimes charged. The defendant was convicted of committing assault in the second degree and robbery in the first degree. Both of the crimes share the common element of the use of a dangerous instrument. Rzap testified that he was struck repeatedly with a “black stick.” This testimony is evidence of the dangerous instrument element of the crimes. Moreover, the stick is relevant in that it corroborates Rzap’s testimony.

Furthermore, the admission of the stick into evidence was not unduly prejudicial. The defendant’s argument that the stick, because it is real evidence, has a greater impact on the jury without any probativeness, is incorrect. It is well established that relevant evidence may be excluded if its capacity to prejudice outweighs its probativeness. State v. Ibraimov, 187 Conn. 348, 352, 446 A.2d 382 (1982). “To the extent that the evidence tended to prejudice the defendant, it was for the trial court, in the exercise of judicial discretion, to decide whether the probative value of the testimony outweighed the prejudice likely to result from its admission. State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979).” State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 869 (1980). Our Supreme Court has adopted four situations from C. McCormick, Evidence (2d Ed.) § 185, pp. 439-40, in which the potential prejudicial effect of a particular piece of evidence would suggest its exclusion. “These are: (1) where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy, (2) where the proof and answering evidence it provokes may create a side issue that will unduly distract the jury from the main issues, (3) where the evidence offered and the counterproof will consume an undue amount of time, and (4) where the defendant, having no reasonable ground to anticipate the evidence, is unfairly surprised and unprepared to meet it.” State v. DeMatteo, 186 Conn. 696, 702-703, 443 A.2d 915 (1982). None of these dangers is present here. The defendant’s assertion that the admission of the stick created a side issue is incorrect because the stick merely corroborated other evidence. See State v. Ruth, 181 Conn. 187, 435 A.2d 3 (1980).

IV

In his fourth claim of error, the defendant argues that Waite should not have been allowed to testify as to the discovery of the wallet lying on the ground within five feet of the initial stop of the defendant. The trial court, after hearing the defendant’s motion to suppress any testimony regarding the observation of the wallet, the removal and return of the wallet to the defendant, questioning about the wallet, and the discovery of the wallet, ruled that the initial patdown was legal, but the subsequent search was improper. The result of the court’s ruling was that the wallet was admissible, but Waite’s taking of the wallet out of the defendant’s pocket was inadmissible. Specifically, the defendant claims that the police found the wallet only by exploiting an illegal search, making the wallet tainted and that there was no evidence that the wallet would have been inevitably discovered.

“Under the exclusionary rule, evidence must be suppressed if it is found to be the ‘fruit’ of prior police illegality. Wong Sun v. United States, supra, 485. All evidence is not, however, a ‘fruit of the poisonous tree’ simply because it would not have been discovered but for the illegal action of law enforcement officials. Id., 487-88; see State v. Villafane, 171 Conn. 644, 655, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S. Ct. 1137, 51 L. Ed. 2d 558 (1977), overruled in part on other grounds, State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984). ‘Rather, the more apt question in such a case is “whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” ’ Wong Sun v. United States, supra, 488, quoting Maguire, Evidence of Guilt (1959) p. 221.” State v. Cates, 202 Conn. 615, 619-20, 522 A.2d 788 (1987).

The police would have discovered the wallet “independent[ly] of any constitutional violation.” Nix v. Williams, 467 U.S. 431, 443, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). The inevitable discovery rule as set forth in Nix and followed by our Supreme Court in State v. Badgett, 200 Conn. 412, 433, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986), holds that evidence is admissible if it would have been discovered regardless of the illegal search. “To qualify for admissibility the state must demonstrate that the lawful means which made discovery inevitable ... were being actively pursued prior to the occurrence of the constitutional violation.” (Emphasis in original.) Id. The United States Supreme Court stressed in Nix that the inevitable discovery rule is fair in that it “placfes] the State and the accused in the same positions they would have been in had the impermissible conduct not taken place.” Nix v. Williams, supra, 447.

In the present case, it is clear that Waite believed that the defendant possessed a wallet as a result of the original, legal patdown. Waite’s belief came from the original patdown when he felt the chain and square object, and independent of the subsequent illegal search. When the wallet disappeared it was logical for Waite to retrace his steps to where he had last encountered it. Furthermore, the sneakers were discovered prior to the illegal search and the police in photographing the area of the original patdown would have discovered the wallet by lawful means. As in United States v. Crews, 445 U.S. 463, 472, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980), “the toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned.”

V

In his final claim of error, the defendant argues that the trial court erred in failing to instruct the jury on the lesser included offenses of robbery in the third degree and larceny in the second degree. A criminal defendant is entitled to a charge on a lesser offense, if and only if, the following conditions are satisfied: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

The defendant’s argument that an instruction on third degree robbery should have been, given is incorrect. Despite getting past the first two prongs of the test, the defendant has failed to meet the requirements of the fourth prong. The defendant claims that the dangerous instrument (i.e., the stick) was never sufficiently identified and connected with the offenses. Furthermore, the defendant alleges that there was no evidence of the use of a dangerous instrument. The use of the stick constitutes a dangerous instrument which distinguishes first degree robbery from third degree robbery. Moreover, an examination of the record indicates that the robbery did not occur without the use of this dangerous instrument. See State v. Fernandez, 5 Conn. App. 40, 45-46, 496 A.2d 533 (1985).

Although the defendant requested a lesser included offense request on larceny in the second degree, he based the request on simple larceny. Robbery in the first degree, the actual charge, entails simple larceny. Larceny from the person is a separate and distinct offense from that of simple larceny. Second degree larceny requires an actual, trespass to the person of the victim. In re Juvenile Appeal (84-4), 1 Conn. App. 642, 645, 474 A.2d 485 (1984). One could, however, commit larceny in the first degree without committing a trespass to the victim. Therefore, the second prong of Whistnant is not satisfied and the trial court did not err in failing to charge as requested.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides: “A person is guilty of assault in the first degree when . . . (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person.”

       General Statutes § 53a-8 provides: “A person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-60 (a) provides: “A person is guilty of assault in the second degree when ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53-134 (a) provides: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . (3) uses or threatens the use of a dangerous instrument . . .

       Practice Book § 956B (b) provides: “Except as otherwise provided herein and in Sec. 956C, the trial of a defendant charged with a criminal offense on or after July 1, 1985, shall commence within twelve months from the filing of the information or from the date of the arrest, whichever is later.
      “The trial of such defendant shall commence within eight months from the filing of the information or from the date of the arrest, whichever is later, if the following conditions are met:
      “(1) the defendant has been continuously incarcerated in a correctional institution of this state pending trial for such offense; and
      “(2) the defendant is not subject to the provisions of Gen. Stat. § 54-82c.”

       The state claimed that the following days were excludable:
      The defendant’s pretrial motions dated September 13, 1985, and acted on October 21, 1985-38 days; the defendant’s examination motion October 21, 1985, and acted on November 19, 1985-30 days; the defendant’s motion to suppress February 3,1986, and acted on February 10,1986-11 days; and the defendant’s motion for speedy trial April 11,1986, and acted on April 21, 1986-11 days. The total arrived at by the state is 90 days.

       General Statutes § 53a-136 (a) provides: “A person is guilty of robbery in the third degree when he commits robbery [as defined in § 53a-133].”

       General Statutes § 53a-123 (a) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another . . . .”


text:
    Ginger Caccavale v. Hospital of St. Raphael et al.
    (5402)
    Spallone, Daly and Norcott, Js.

      Argued January 20
    decision released May 24, 1988

      Peter A. Kelly, for the appellant (plaintiff).

      Robert J. Cooney, for the appellees (named defendant et al.).

      Garie J. Mulcahey, with whom, on the brief, was Dennis M. Laccavole, for the appellee (defendant J. Kevin Lynch).
   Daly, J.

This action was brought by the plaintiff to recover damages for alleged malpractice from the following defendants: Hospital of St. Raphael and surgeons J. Kevin Lynch and Andrew Rhodin. After a trial by a jury, a verdict was returned against Lynch for $12,500 and in favor of the other two defendants. The trial court subsequently denied the plaintiffs motions to set aside the verdict as to damages against Lynch and in favor of the remaining defendants. The plaintiff claims that the trial court erred in granting the motion in limine made by the hospital and Rhodin precluding the plaintiffs expert witness from testifying, and in its instruction concerning damages.

In the plaintiffs first claim of error, she argues that the trial court erred in granting the motion in limine precluding the expert testimony of Andrew Newman, a physician, against the hospital and Rhodin. The trial court based its ruling on Practice Book § 220 and Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 476 A.2d 1074 (1984). On October 3, 1981, the defendants filed a request for disclosure and production of the names and addresses of all experts expected to testify on behalf of the plaintiff. The defendants further requested: “(a) the subject matter on which such expert is expected to testify; (b) the substance of the facts and opinion to which each expert is expected to testify; and (c) a summary of the grounds for each such opinion.” The plaintiff responded to the request on January 26, 1982, stating that she, at that time, did not have an expert on behalf of her side.

Practice Book § 232 provides for a continuing duty to disclose on the part of the plaintiff. The plaintiff filed an amended disclosure dated January 10, 1986, identifying Newman as her expert and indicating that the copies of his report would be mailed to all counsel of record. Subsequently, two reports of Newman dated December 31, 1985, and March 28, 1986, were transmitted to counsel of record. The trial court felt that the supplying of these reports did not comply with the requirements of Practice Book § 220 and refused to permit Newman to testify pursuant to Practice Book § 231 (d).

“The discovery rules are designed to facilitate trial proceedings and to make a ‘trial less a game of blind-man’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.’ United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). ‘The court’s decision on whether to impose the sanction of excluding the expert’s testimony concerning causation rests within the sound discretion of the court.’ Sturdivant v. Yale-New Haven Hospital, supra, 107. Unless the trial court had abused a legal discretion, its action should not be disturbed; in making this analysis, we must afford the decision of the trial court great weight and allow every reasonable presumption to be made in favor of its correctness. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926). ‘In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.’ Timm v. Timm, supra, 207; E. M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959); Sturdivant v. Yale-New Haven Hospital, supra, 108. ‘The court’s conclusion, that the consequences of the plaintiff’s failure folly and fairly to disclose, despite being given ample opportunity to do so . . . should fall upon the plaintiff rather than upon the defendants, was not an abuse of discretion.’ ” Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 519, 509 A.2d 552 (1986).

We hold that the trial court reasonably ruled that the plaintiff failed to comply substantially with the discovery order and, therefore, correctly precluded Newman from testifying. Moreover, we note that if one were to find substantial compliance with § 220, the error nonetheless would be harmless since an examination of the reports written by Newman reveals liability against Lynch only. The other defendants are not even mentioned in the reports.

The plaintiff claims that the trial court erred in its instruction concerning damages: (1) instructing the jury not to consider the permanency of the injuries; (2) failing to instruct the jury as to the plaintiff’s life expectancy; (3) failing to instruct the jury as to loss of life’s enjoyment as an element of the plaintiffs damages; and (4) failing to instruct the jurors that they could consider the effect of inflation upon any award they might reach.

The plaintiff’s first claim of error in the trial court’s instruction is that the trial court erred in refusing to instruct the jury to consider the permanency of the plaintiff’s injuries when awarding damages. It is axiomatic that a plaintiff may rely upon what she had alleged in her complaint. Brochu v. Brochu, 13 Conn. App. 681, 684, 538 A.2d 1093 (1988) (and cases cited therein). The plaintiff argues that paragraph 4 (a) of the amended complaint satisfies the allegation of permanency. Paragraph four of the amended complaint read: “As a further result of the defendant’s negligence, the plaintiff suffered the following damages: (a) Periodic disabling pain in both feet . . . .’’The trial court was not in error in determining that the plaintiff failed to set forth any allegations of permanency in her complaint. C.f., Voight v. Selman, 14 Conn. App. 198, 540 A.2d 104 (1988).

In the plaintiff’s second claim of error, regarding the jury charge, the plaintiff argues that the trial court erred in failing to instruct the jury as to the plaintiff’s life expectancy. The plaintiff’s request, however, came after the close of evidence. Moreover, there was no testimonial evidence produced at trial concerning the plaintiff’s life expectancy, nor was any statistical or actuarial information supplied. While the general rule is that a court may make judicial notice of life expectancy; Sims v. Smith, 115 Conn. 279, 286, 161 A. 239 (1932); it is understood that “matter[s] which it is claimed the court should judicially notice should ordinarily be called to its attention by a party seeking to take advantage of it in the course of presenting evidence in the case so that, if there is ground upon which it may be contradicted or explained, the adverse party will be afforded an opportunity to do so . . . .’’Nichols v. Nichols, 126 Conn. 614, 622, 13 A.2d 591 (1940). It is perfectly clear from the record that the only mention of life expectancy arose in the plaintiff’s request to charge. The defendant properly points out that the plaintiff neglected to move to open her case for the addition of life expectancy evidence. “Whether or not a trial court will permit further evidence to be offered after the close of testimony in a case is a matter resting in the sound discretion of the court.” Toffolon v. Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977). Even if we were to treat the request to charge as a motion to open for the presentation of additional evidence, we find no abuse in discretion in denying the request to charge.

The plaintiffs request to charge also contained an instruction that the plaintiff could recover for “the extent to which her injuries have prevented and will prevent her from the ability to carry on all of life’s activities.” The trial court did not charge as the plaintiff requested. In her request to charge, the plaintiff cited only the case of Kiniry v. Danbury Hospital, 183 Conn. 448, 439 A.2d 408 (1981), in support of the proposed instruction. The plaintiff’s reliance on this case is clearly misplaced. In Kiniry, the executrix brought a malpractice action against the hospital and attending physician for the death of her husband. It should be noted, however, that Kiniry was obviously a case where one lost the ability to enjoy life because of the injuries sustained by the malpractice. See also Pisel v. Stamford Hospital, 180 Conn. 314, 344, 430 A.2d 1 (1980) (through the defendant’s malpractice, the plaintiff remained in a semi-comatose condition). Upon review of the trial court’s instructions as to damages, we find that the court properly instructed the jury on the elements of damages recoverable under the allegations of the complaint.

Finally, the trial court denied the plaintiff’s request to charge the jury concerning the effect of inflation on its award. In support of this claim, the plaintiff, again, relies on Kiniry. Once again, however, the plaintiff’s reliance is inappropriate. In Kiniry, an instruction concerning inflation was deemed appropriate because it related to “lost earning capacity and expected personal living expenses.” Kiniry v. Danbury Hospital, supra, 457. In this case, an instruction on inflation was unwarranted because neither lost earning capacity nor expected living conditions was involved.

The standard of review of a jury instruction by a trial court is perfectly clear. We must be careful to examine the instruction in its entirety and do not isolate particular aspects for review. Rogers v. Delfino, 13 Conn. App. 725, 730, 539 A.2d 156 (1988). “ ‘The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. Borsoi v. Sparico, 141 Conn. 366, 371, 106 A.2d 170 (1954). Since the charge was sufficiently correct in law, adapted to the issues and ample for the guidance of the jury, it met the required test.’ DeCarufel v. Colonial Trust Co., 143 Conn. 18, 20-21, 118 A.2d 798 (1955).” Atlantic Richfield Co. v. Canaan Oil Co., 202 Conn. 234, 240, 520 A.2d 1008 (1987). Examining each of the claimed errors under this standard indicates that the instruction as a whole was not erroneous.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 220 (a) (1) provides: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter of which the expert is,expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary for the grounds of each opinion.”

       Practice Book § 232 provides: “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested ... he shall promptly notify the other party . . . .” (Emphasis added.)

       Practice Book § 231 provides: “If any party has failed to answer interrogatories or to answer them fairly ... or has failed otherwise substantially to comply with any other discovery order . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters . . . .”

       The plaintiff attempted to amend her complaint specifically to claim permanency but the motion was denied by the trial court. The plaintiff claimed this as one of her reasons for setting aside the verdict but failed to pursue it on appeal.