text:
    BARBARA RICCIUTI v. MICHAEL RICCIUTI
    (AC 21816)
    Lavery, C. X, and Dranginis and Dupont, Js.
    Argued September 19
    officially released December 17, 2002

      James W. Shea, for the appellant (defendant).

      Lee Marlow, with whom was Bernard Christianson, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendant, Michael Ricciuti, appeals from the judgment of the trial court dissolving his marriage to the plaintiff, Barbara Ricciuti. On appeal, the defendant claims that the court improperly (1) awarded 25 percent of his pension to the plaintiff, (2) determined that the value of the parties’ real property at 289 Old Toll Road in Madison was $175,000 and (3) ordered him to refinance the real properties he was awarded to pay the property distribution of $136,000 that was awarded to the plaintiff. We affirm the judgment of the trial court.

The court made the following factual findings that are not in dispute on appeal. The parties were married on July 16, 1977. They have four children who were bom to them during their marriage. The plaintiff was forty-four years old at the time of the dissolution of the marriage. She graduated from high school and has one year of college education. Since May, 1998, the plaintiff has owned a 50 percent share in Spacolli Enterprises, LLC, a home improvement business. That share is valued at $12,000. In November, 2000, the plaintiff injured her back and was scheduled to return to work after surgery. The court found that she has an earning capacity of $400 per week.

The defendant is fifty-eight years old and is in generally good health. From 1974 to 1996, he was employed with the United States Department of Defense. The defendant receives a pension from the Department of Defense in the amount of $642 per week. Since September, 2000, the defendant has been employed as a teacher at Xavier High School in Middletown, where he receives a weekly net income of $462.

The parties owned a marital home at 299 Old Toll Road in Madison, which is not encumbered by any mortgages or hens. The parties stipulated that the value of that property was $240,000. The parties also owned property at 289 Old Toll Road in Madison, which is encumbered by a mortgage with a principal balance of $100,000. The value of that property was in dispute at trial and now on appeal. Both parties presented expert appraisal testimony as to the value of289 Old Toll Road. The court determined that the value of the property was $175,000.

The court found that the plaintiff was at fault for the breakdown of the marriage due to two extramarital affairs. One of those affairs was with her business partner at Spacolli Enterprises, Frank Sanzero, with whom the plaintiff planned to live after the dissolution of the marriage. The court awarded no alimony to the plaintiff.

The following financial awards that are the subject of the defendant’s appeal were made by the court. First, the plaintiff was awarded 25 percent of the defendant’s monthly pension from the Department of Defense. Second, the plaintiff was awarded $136,000 as a property distribution. The defendant was ordered to pay the plaintiffs property distribution through a refinancing of the properties at 289 and 299 Old Toll Road, which were awarded to the defendant by the court.

I

The defendant first claims that the court improperly awarded the plaintiff 25 percent of his pension. On appeal, he argues that his pension is not property that may be assigned pursuant to General Statutes § 46b-81. We disagree.

The court has the authority to distribute the property of either spouse after dissolving a marriage. General Statutes § 46b-81 provides in relevant part that the court “(a) . . . may assign to either the husband or wife all or any part of the estate of the other. . . . (c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

Our Supreme Court has concluded that vested pension benefits are property that the trial court may assign. Krafick v. Krafick, 234 Conn. 783, 798, 663 A.2d 365 (1995). In Krafick, the court explained that “[i]t is widely recognized that the primary aim of property distribution is to recognize that marriage is, among other things, a shared enterprise or joint undertaking in the nature of a partnership to which both spouses contribute — directly and indirectly, financially and non-financially — the fruits of which are distributable at divorce. . . .

“Pension benefits are widely recognized as among the most valuable assets that parties have when a marriage ends. . . . Pension benefits are an economic resource acquired with the fruits of the wage earner spouse’s labors which would otherwise have been utilized by the parties during the marriage to purchase other deferred income assets. . . . Both the nonemployed spouse and his or her wage earning marital partner have the same retirement goals and expectancies regarding the pension benefits as they would if they provided for their later years by using wage income to purchase other investments.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 795-96.

Here, the defendant began receiving a pension from the Department of Defense after his retirement in 1996. The pension accrued over twenty-two years, during nineteen of which the parties were married. The court, therefore, correctly determined that the defendant’s pension was subject to distribution under § 46b-81.

We must next determine whether the court’s award to the plaintiff of 25 percent of the defendant’s pension was proper. “The well settled standard of review in domestic relations cases is that this court will not disturb trial court orders unless the trial court has abused its legal discretion or its findings have no reasonable basis in the facts. ... As has often been explained, the foundation for this standard is that the trial court is in a clearly advantageous position to assess the personal factors significant to a domestic relations case, such as demeanor and attitude of the parties to the hearing. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Sowinski v. Sowinski, 72 Conn. App. 25, 30, 804 A.2d 872 (2002).

The court made detailed factual findings and applied those facts to the factors set forth in § 46b-81 (c) that a court must consider when distributing property after dissolving a marriage. Specifically, the court stated in its memorandum of decision: “The plaintiff is entitled to a portion of the defendant’s pension benefits given the accrual of those benefits over the course of their lengthy marriage, the plaintiffs contributions, both financial and nonfinancial, to the marriage, and her lack of pension benefits of her own. The plaintiffs fault in ultimately causing the breakdown of her marriage, the significant disparity in the parties’ ages and, given that disparity, the plaintiffs greater ability to acquire capital assets in the future counsel for a diminished distribution to her. After carefully considering all of the statutory criteria set forth in General Statutes § 46b-81, I award the plaintiff 25 percent of the defendant’s monthly pension benefits.” The court’s findings are supported by the record, and its application of those facts to the statutory considerations in § 46b-81 (c) demonstrate that the court did not abuse its discretion in awarding the plaintiff 25 percent of the defendant’s pension.

II

The defendant next claims that the court improperly determined the value of the property at 289 Old Toll Road. He argues that the court’s conclusion that the value of the property was $175,000 was clearly erroneous and not supported by the evidence. We are not persuaded.

The following additional facts are necessary for our resolution of the defendant’s claim. At trial, the plaintiff provided expert appraisal testimony from Gordon S. Williams. Williams valued the property at $175,000 utilizing a sales comparison approach. The defendant offered the expert appraisal testimony of Thomas Boyle. Boyle also used a sales comparison method and valued the property at $145,000. The court ultimately determined that the value of the property was $175,000.

“We have long held that a finding of fact is reversed only when it is clearly erroneous. ... A factual finding is clearly erroneous when it is not supported by any evidence in the record or when there is evidence to support it, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) Hammick v. Hammick, 71 Conn. App. 680, 686, 803 A.2d 373, cert. denied, 262 Conn. 908, 810 A.2d 273 (2002). We note that “a trial court has broad discretion in determining the value of property. In assessing the value of . . . property . . . the trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has the right to accept so much of the testimony of the experts and the recognized appraisal methods which they employed as he finds applicable; his determination is reviewable only if he misapplies, overlooks, or gives a wrong or improper effect to any test or consideration which it was his duty to regard.” (Internal quotation marks omitted.) Porter v. Porter, 61 Conn. App. 791, 799-800, 769 A.2d 725 (2001).

Here, the court reviewed the evidence offered at trial and determined the value of the property to be $175,000. The court’s determination is supported by adequate evidence in the record, including that from the plaintiffs expert witness. Our review of the record and transcripts provides no indication that the court’s conclusion was clearly erroneous.

Ill

The defendant’s final claim on appeal is that the court improperly ordered him to refinance the properties, which he was awarded, to pay the plaintiff her property distribution award of $136,000. We disagree.

As previously stated, this corat will not reverse a financial order in a domestic relations case unless there was an abuse of discretion. Sowinski v. Sowinski, supra, 72 Conn. App. 30. “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . [I]n determining [whether there has been an abuse of discretion] the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Citation omitted; internal quotation marks omitted.) Id.

The defendant argues that the court abused its discretion because he is fifty-eight years old, and the plaintiff was awarded 25 percent of his monthly pension, thereby reducing his income. Those facts, the defendant asserts, cause refinancing to become a financial burden, and the court must hear evidence concerning the ability of the defendant to refinance before it can make such an order. There is, however, no evidence of an abuse of discretion.

The court had evidence that a refinancing arrangement was agreed on and contemplated by the parties, and noted that in its memorandum of decision. In addition, the court had the financial affidavits of the parties as evidence when it issued its orders, and, thus, it was able to determine the respective financial needs and abilities of each party. Given those facts, the court had a reasonable basis on which to order the defendant to refinance the properties to pay the plaintiffs property distribution award of $136,000, and, therefore, there was no abuse of discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Only one child was a minor at the time of trial.

       In Ms appellate brief and at oral argument, the defendant argues that the court did not consider that Ms pension was in lieu of social security benefits and that the defendant is not eligible for social security benefits, although the plaintiff may be eligible. The defendant, therefore, argues that his pension should not be considered as property for distribution, or, in the alternative, that the case be remanded to the trial court for consideration of whether any social security benefits of the plaintiff should have been considered in the property distribution.
      There was, however, no evidence presented at trial concerning’ the relationship between the defendant’s pension and social security, nor was any evidence offered concerning the plaintiffs eligibility for social security. The defendant is limited on appeal to the evidence presented at trial and “cannot be permitted to rely upon matters never called to the attention of any trier of fact. The factual issue [the defendant] seek[s] to raise for the first time on appeal cannot be adequately explored at this stage of the proceeding.” Beechwood Gardens Tenants’ Assn. v. Dept. of Housing, 214 Conn. 505, 516, 572 A.2d 989 (1990); see also Gupta v. New Britain General Hospital, 239 Conn. 574, 593 n.16, 687 A.2d 111 (1996). We therefore decline to review the defendant’s new factual allegations raised for the first time on appeal.

       In doing so, our Supreme Court stated that “[pjension benefits represent a form of deferred compensation for services rendered. . . . They do not constitute mere gratuities ... as the interest in receiving such benefits is contractual in nature. Whether the plan is contributory or noncontributory, the employee receives a lesser present compensation plus the contractual right to the future benefits payable under the pension plan. . . . [Vested pension benefits] are contract rights of value .... As contractual rights, pension benefits are a type of intangible property . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Krafick v. Krafick, supra, 234 Conn. 794-95.

       General Statutes § 46b-81 (c) provides in relevant part that the court “shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       In the defendant’s proposed orders, proposal number five states: “Within six (6) months the [defendant] shall obtain mortgages to purchase [the plaintiffs] share of the properties . . . .”
      Also, the following colloquy occurred at trial:
      “The Court: And ... let me ask you. I briefly looked at the proposed orders, and it may be in there, but with respect to the marital home, what is your proposal? I understand it’s [75 percent-25 percent]. But are you requesting that [the defendant] be able to live with [one of the parties’ children] and then it be sold when he graduates from high school or what is the proposal?
      “[Defendant’s Counsel]: No, my proposal is [that] the plaintiff quitclaim her interest in the two properties to [the defendant] and that within six months, he obtain refinancing, and mortgage, to pay off that equity to [the plaintiff], and we didn’t make any statement, but clearly the order could be a lien on the property or something to protect that interest.
      “The Court: And I understand the percentages you dispute . . . but my understanding is [that the plaintiff] does not want the properties.
      “[Plaintiffs Counsel]: Correct.
      “The Court: And I take it you have no problem with him paying it through a refinancing of the properties; is that correct?
      “[Plaintiffs Counsel]: No, Your Honor.
      “The Court: Okay.”


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ANTONIO RIVERA
    (AC 20386)
    Lavery, C. J., and Foti and Landau, Js.

      Argued September 26

    officially released December 17, 2002

      Brian D. Russell, special public defender, for the appellant (defendant).

      John A. East III, senior assistant state’s attorney, with whom, on the brief, were James E. Thom,as, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).

       This appeal was first argued on December 13, 2001. Judge John J. Daly, a member of the panel that heard oral argument on that date, died before the panel was able to concur on a written decision. The appeal, therefore, was argued a second time.

   Opinion

LANDAU, J.

The defendant, Antonio Rivera, appeals from the judgments of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) or (5) and 53-202k, criminal possession of a firearm in violation of General Statutes (Rev. to 1997) § 53a-217 (a) (l), carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a) and tampering with a witness in violation of General Statutes § 53a-151. The court found that the defendant had committed a class B felony with a firearm, warranting a mandatory, non-suspendable term of five years imprisonment pursuant to § 53-202k.

On appeal, the defendant claims that (1) there was insufficient evidence to sustain the verdicts rendered by the jury, (2) the court improperly denied his motion to suppress the victim’s pretrial photographic identification of the defendant and (3) the court improperly admitted into evidence the name and number of the defendant’s prior felony convictions. We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. On the evening of October 12, 1997, Jose Marti, the victim, was at the Copa Cafe (club) in Hartford playing pool. The defendant also was at the club and in the company of Josepha Guadalupe. The club was crowded. At about midnight, the victim accidentally bumped into the defendant. The men confronted one another and exchanged angry words, and the defendant invited the victim to step outside to settle their differences.

The victim accepted the defendant’s challenge and followed him outside, believing that the two would engage in a fistfight. The defendant, however, brandished a knife. Guadalupe was a friend of both men; she had gone to school with the victim for years and had known the defendant for several weeks. When the defendant displayed his knife, Guadalupe intervened to stop the confrontation and convinced the victim to return to the club. Although the defendant was not willing to forget the incident, Guadalupe was able to persuade him to leave the club with her. She went back into the club to say goodbye to her uncle, who was the proprietor. The defendant followed her.

The defendant, his cousin, a third male and Guadalupe subsequently left the club as a group and congregated about an automobile. The victim and a group of his friends followed them outside. The defendant and his cousin made disparaging comments about the victim. The victim and the defendant’s cousin became embroiled in a verbal exchange, and then the victim punched the cousin in the face. The defendant became angry and demanded that Guadalupe hand him his jacket. Although she initially refused to do so, Guadalupe handed over the jacket after the defendant pushed her. The defendant took a handgun from the pocket of the jacket and shot the defendant in the abdomen from a range of four to five feet. When the victim turned and ran, the defendant fired two more shots at him. The victim reentered the club and was taken to a hospital by a friend. He underwent surgery for his injuries. A bullet that had pierced his bowels and a portion of his small intestines had to be removed. He later underwent a second surgery to remove a bullet that had lodged in his side.

Guadalupe was getting into an automobile when she heard the first shot. She turned to see the defendant holding a five to six inch chrome pistol in his hand. Guadalupe had not known that there was a weapon in the jacket and had not felt it when she handed the heavy leather garment to the defendant. She saw the defendant flee on foot. She then left the scene in the automobile of a female friend. The two drove around for a time to collect themselves and to discuss the situation.

Guadalupe returned to the club and spoke with police. She was reluctant to identify the defendant as the peipetrator of the crime, but did so when the police confronted her with the possibility of being charged as an accomplice. When Guadalupe returned to her apartment, she found the defendant waiting for her. He gave her a telephone number and instructed her to call him later to discuss the incident. The defendant left on a bicycle. Guadalupe subsequently went to her boyfriend to discuss the matter and decided to call the police and give them the defendant’s telephone number. She spoke to Officer Norman Godard of the Hartford police department at about 3:50 a.m.

On January 6,1998, the defendant telephoned Guadalupe and accused her of implicating him in the shooting of the victim. He told her to leave the area so that she would not be available to testify against him. She refused to leave, and the defendant threatened her. Guadalupe reported the defendant’s threats to Detective Stephen Grabowski. At that time, she identified the defendant from an array of photographs and gave a written statement to the police.

At the conclusion of the state’s case-in-chief, the defendant orally moved for a judgment of acquittal, which the court denied. The defendant presented no evidence. On July 28, 1999, the jury returned a verdict of guilty on the charges of assault in the first degree, criminal possession of a firearm, carrying a pistol or revolver without a permit and tampering with a witness. Thereafter, the state entered a nolle prosequi as to the charge of attempt to commit murder.

On November 10,1999, the court sentenced the defendant to seventeen years in prison for the conviction of the three charges stemming from the October incident. The court also determined that the defendant was guilty of violating § 53-202k and enhanced the sentence by five years. The total sentence for that conviction, therefore, was twenty-two years. The court also sentenced the defendant to eighteen months in prison for his conviction of the charge of tampering with a witness, which is to be served consecutively to the sentence for the other three charges. The defendant’s total effective sentence was twenty-three and one-half years. The defendant appealed. Where necessary, additional facts will be supplied.

I

The defendant first claims that there was insufficient evidence to sustain the jury’s verdict of guilty of assault in the first degree, criminal use of a firearm, carrying a pistol or revolver without a permit and tampering with a witness, and as a consequence, that his state and federal rights to due process were violated. The basis of the defendant’s claim is that the evidence was circumstantial rather than direct. We do not agree with his claims.

“It is axiomatic that the state, in a criminal case, has the burden of proving every essential element of the crime charged beyond a reasonable doubt. [State v. Jackson, 176 Conn. 257, 258, 407 A.2d 948 (1978)]. . . . [P]roof beyond a reasonable doubt is such proof as precludes every reasonable hypothesis except that which it tends to support and is consistent with the defendant’s guilt and inconsistent with any other rational conclusion. Id., 263-64.” (Internal quotation marks omitted.) State v. Cobbs, 203 Conn. 4, 11, 522 A.2d 1229 (1987).

“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“We note that the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, [but] each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. . . .

“Moreover, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. ... In evaluating evidence, the [finder] of fact is not required to accept as dispositive those inferences that are consistent with the defendant’s innocence. . . . The [finder of fact] may draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Citations omitted; internal quotation marks omitted.) State v. Meehan, 260 Conn. 372, 377-78, 796 A.2d 1191 (2002). Finally, it is beyond question that the trier of fact, here, the jury, is the arbiter of credibility. This court does not sit as an additional juror to reconsider the evidence or the credibility of the witnesses. See State v. Colon, 71 Conn. App. 217, 224-25, 800 A.2d 1268, cert. denied, 261 Conn. 934, 806 A.2d 1067 (2002).

A

The defendant’s first sufficiency claim is that the state failed to prove beyond a reasonable doubt that he was the person who caused the victim’s physical injury and, therefore, that the jury could not have found him guilty of assault in the first degree in violation of § 53a-59 (a) (1) or (5). We disagree.

The essence of the defendant’s claim is that the testimony of the victim and Guadalupe was insufficient to convict him. The basis of his claim is the victim’s inability or failure to tell the police who shot him when the police visited him at the hospital immediately after the incident. The defendant also relies on inconsistencies in Guadalupe’s testimony and his belief that Guadalupe had reason to implicate him falsely as the shooter. The defendant does not challenge the sufficiency of the evidence the state produced to prove the serious physical injury, physical injuiy or deadly weapon, dangerous instrument or firearm elements of the statutory subdivisions.

In his brief to this court, the defendant also does not provide an analysis of whether the state failed to prove the element of intent. Instead, he focuses on whether “the state’s evidence is improbable and unconvincing and where all the facts found are insufficient to prove the guilt of the defendant beyond a reasonable doubt.” State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991). On the basis of our review of the trial transcript, we cannot conclude that there was insufficient evidence from which the jury could have found the defendant guilty of assault in the first degree. The jury reasonably could have concluded that the defendant intended to cause the victim harm. When the victim and the defendant first stepped outside the club after bumping into one another, the defendant displayed a knife and refused to have a fistfight with the victim. The defendant’s treatment of Guadalupe when she refused to give him his jacket is evidence of his determination to inflict the harm that he did inflict.

The victim’s testimony that the defendant shot him was not contradicted and was consistent with Guadalupe’s testimony about the shooting. One of the defendant’s arguments regarding his sufficiency claim is that the victim did not describe the defendant as the shooter when the police visited the victim at the hospital. First, there is no evidence that the police at the hospital asked the victim to describe the perpetrator of the crime and, second, the medical personnel did not permit the police to question the victim due to his injuries. In assessing the credibility of a witness, jurors are permitted to rely on their everyday experience. Common sense does not take flight at the courthouse door. State v. Edward B., 72 Conn. App. 282, 295, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 76 (2002). The jury reasonably could have inferred that the victim was not able or permitted to discuss the shooting until he had been released from the hospital. When the victim was released from the hospital, he was able to identify the defendant from an array of photographs. He also identified the defendant in the courtroom. The victim’s testimony alone was sufficient for the jury to find that the defendant had shot the victim.

The defendant has made several arguments with respect to the credibility of Guadalupe’s testimony. We acknowledge that Guadalupe’s testimony was at times inconsistent. The defendant attempted to demonstrate that Guadalupe had personal reasons to implicate him. She had known the victim for fifteen years while they attended school, and she had known the defendant for several weeks. At trial, the defendant asked certain questions of Guadalupe in an effort to demonstrate that he had spumed her advances. She also admitted that she had implicated the defendant when the police informed her that if she did not tell them what she knew, she might face charges as an accomplice for helping the defendant avoid capture.

To be sure, the nature of the defendant’s relationship with Guadalupe is unclear. As to the precipitating events at the club on the night in question, however, the testimony of Guadalupe and the victim is similar. Guadalupe’s testimony about the shooting itself also is consistent with that of the victim. We do not know whom or what the jury believed, but as we have stated, the victim’s testimony alone was sufficient for the jury to find that the defendant had shot him.

B

The defendant also claims that there was insufficient evidence for the jury to find beyond a reasonable doubt that he possessed a weapon at the time the victim was shot. That claim is related to the defendant’s conviction of criminal possession of a firearm in violation of § 53a-217 and carrying a pistol or revolver without a permit in violation of § 29-35. The substance of his argument is substantially the same as the one that he made with respect to the conviction of assault in the first degree, i.e., that there was insufficient evidence that he was the perpetrator of the crime. The defendant’s argument is no more persuasive with respect to the weapons charges than it was with respect to the charge of assault in the first degree.

With respect to the defendant’s claim, the relevant provisions of § 53a-217 axe that a person is guilty of criminal possession of a firearm when he possesses a firearm and has been convicted of a felony. General Statutes (Rev. to 1997) § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. ...” The defendant does not challenge the evidence that he is a convicted felon, that he did not have a permit for the pistol he used to shoot the victim, or that the pistol was operable.* He claims merely that the evidence was insufficient to prove that he shot the victim. Furthermore, he has cited no law and provided no analysis to support his claim.

We already have concluded that there was sufficient evidence before the jury from which it could find beyond a reasonable doubt that the defendant demanded his jacket, took a chrome pistol from the jacket and shot the victim. The victim saw the defendant take the pistol from the jacket and shoot him from a range of four to five feet. Guadalupe heard a shot and turned to see the defendant holding a chrome pistol in his hand. The defendant relies on his attack on the credibility of the witnesses to substantiate his claim of insufficient evidence. The jury alone decides the credibility of the witnesses, not this court. We conclude that the jury reasonably could have found that the defendant had possession of the pistol because he “exercised intentional dominion and control over the firearm and ... he had knowledge of its character.” State v. Williams, 258 Conn. 1, 12, 778 A.2d 186 (2001). The court therefore properly denied the defendant’s motion for a judgment of acquittal.

II

The defendant’s second claim is that his federal and state constitutional rights were violated by the court’s denial of his motion to suppress the victim’s pretrial identification of him from an array of photographs. The defendant claims specifically that the photographic identification process was unnecessarily suggestive and unreliable because (1) the victim was unable to identify the person who shot him at the time the police talked to the victim in the emergency room, (2) prior to the identification, the police told the victim, in response to his query, that they had a suspect named Little Boy and (3) there were a number of men with the defendant at the time of the shooting, but only his photograph was included in the array. Furthermore, the defendant claims that because the photographic identification violated his constitutional rights, the victim’s in-court identification of him was tainted. We disagree.

The following facts are relevant to our review of the defendant’s claims related to the motion to suppress. Approximately one week before trial, the defendant filed motions to suppress the photographic identifications of him provided by the victim and Guadalupe. The defendant also claimed that any in-court identification of him would be irretrievably tainted by the allegedly suggestive photographic identifications. Several days later, the court held a hearing on the motions to suppress. The victim, Guadalupe and Grabowski testified at the hearing.

The salient facts found by the court were that the lighting both inside and outside the club on October 12, 1997, was good. The victim was playing pool when he backed into the defendant. The two men confronted one another face to face and exchanged words. They went outside to settle their dispute and again confronted one another from a distance of about five feet. Again, just prior to the shooting, the victim and the defendant confronted one another, and the victim saw the defendant take the pistol from his jacket and shoot him. Those confrontations were no less than several minutes in duration.

The court also found that on the night in question, the victim did not know the defendant and had never seen him before. The victim had not seen the defendant since the incident. Grabowski and another officer visited the victim in the hospital emergency room. The victim told the officers that he did not know who shot him. The police were unable to continue their interview because medical personnel were examining and treating the victim. The victim, therefore, was unable to provide a description of his assailant at that time. The victim remained in the hospital for twelve days.

On the night of the shooting, Guadalupe identified the defendant by his street name, Little Boy, as the perpetrator. After the victim had been discharged from the hospital, Grabowski spoke to him by telephone to arrange a time to take a statement from him. During the telephone conversation, the victim asked Grabowski whether the police had a suspect. Grabowski responded that a woman had told the police that the person was known as Little Boy. The court found that there was no evidence that the victim knew who Little Boy was because he had never seen the defendant before or after the incident.

Grabowski interviewed the victim at his home on the afternoon of November 3, 1997, approximately three and one-half weeks after the shooting. Grabowski showed the victim eight photographs of similar appearing Hispanic males, all having the same skin complexion and style of facial hair. The victim selected the photograph of the defendant and signed the reverse side. At the conclusion of the hearing, the court denied the motion to suppress the victim’s photographic identification.

The court later provided a lengthy recitation of its findings of fact and the legal basis for denying the defendant’s motion to suppress the photographic and in-court identifications by the victim. The court determined that the identification procedure used by Grabowski was not overly suggestive and that the identification procedure was reliable in light of the totality of the circumstances. The victim’s in-court identification of the defendant, therefore, was not tainted by the photographic identification.

“The standard of review for a trial court’s ruling on a motion to suppress is well settled. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Citations omitted; internal quotation marks omitted.) State v. Czyzewski, 70 Conn. App. 297, 301, 797 A.2d 643, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). “[0]ur review is plenary and we must determine whether the trial court’s conclusions of law are legally and logically correct and find support in the stipulated facts.” (Internal quotation marks omitted.) Id.

“A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. . . . State v. Hinton, 196 Conn. 289, 293, 493 A.2d 837 (1985). To succeed on the motion to suppress, the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not rehable in the totality of the circumstances. State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, supra, 292-93.” (Internal quotation marks omitted.) State v. Askew, 44 Conn. App. 280, 283-84, 688 A.2d 1346 (1997), rev’d on other grounds, 245 Conn. 351, 716 A.2d 36 (1998).

“[B]ecause the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 554, 757 A.2d 482 (2000). “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) Id., 555.

We have reviewed the transcript and exhibits from the hearing on the motion to suppress and the court’s memorandum of decision. We concur with the court’s analysis and reasoning. The defendant’s argument that the identification procedure was unnecessarily suggestive stems from the fact that Grabowski responded affirmatively to the victim’s question as to whether the police had a suspect. The analysis provided by our Supreme Court in Reid has guided our review.

“It is proper for a court, in determining whether an identification procedure was unduly suggestive, to consider the fact that a police officer tells a victim that a suspect is in a photographic array. . . . Such a statement, however, is not enough to render an identification procedure unduly suggestive. ... It is true that [our Supreme Court] previously has stated that an identification procedure could be invalidated when police expressly indicate to a victim that a suspect is included in a photographic array. . . . The admissibility of identification testimony is to be determined by the totality of the circumstances, however. Even if the identification procedure is unnecessarily suggestive because of a police statement, the identification may still be admitted if the totality of the circumstances is such that the identification was nevertheless reliable.” (Citations omitted.) Id., 556.

In the case before us now, Grabowski did not tell the victim that the person the police suspected of shooting him was in the photographic array. He did tell the victim, however, that the police had a suspect by the street name of Little Boy. The victim did not know the defendant or his street name and, therefore, such information could not have been unnecessarily suggestive. The court found that when Grabowski showed the victim eight photographs, he instructed the victim to examine them closely and take his time to see if he recognized anyone. The evidence supports that conclusion. The court concluded that it was reasonable for the victim to assume that one of the individuals in the photographs was the person who had shot him even without Grabowski’s statement. The court’s conclusion is consistent with our law.

Our Supreme Court “has stated explicitly that little harm is likely to arise where the [victim], even without the police comment, would have inferred that the occasion for his being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed. . . . When presented with a photographic array by the police, crime victims reasonably can surmise that the police may consider one of the persons in the array to be a suspect in the case.” (Citation omitted; internal quotation marks omitted.) Id., 557.

The defendant also contends that the photographic array was unnecessarily suggestive because photographs of other individuals present on the night of the shooting were not included. The defendant has provided no legal basis for his argument that all persons present at the scene of a crime must be included in a photographic array, and we know of none. “We repeatedly have held that [briefs containing] nothing more than bare statements of error will not be reviewed by this court.” State v. Weiner, 61 Conn. App. 738, 756, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001).

We also agree with the court’s assessment of the appearance of the men in the photographic array. The array contained eight photographs of Hispanic males whose complexion and style of facial hair were similar. We conclude, therefore, that the photographic array did not violate the defendant’s constitutional rights. See State v. Taylor, 239 Conn. 481, 499-500, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

Even if the defendant were to have prevailed on the first prong of the test, which he has not, we could not conclude under the totality of the circumstances that the victim’s pretrial identification of the defendant was unreliable. See State v. Reid, supra, 254 Conn. 554-55. “The factors to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure include the opportunity of the witness to view the criminal at the time of the crime. [T]he witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation . . . [are] to be weighed [against] the corrupting effect of the suggestive identification itself.” (Internal quotation marks omitted.) State v. Henton, 50 Conn. App. 521, 534-35, 720 A.2d 517, cert. denied, 247 Conn. 945, 723 A.2d 322 (1998); see also State v. Ramsundar, 204 Conn. 4, 10-11, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987).

The defendant’s primary argument in support of his claim that the victim’s identification was unreliable is that the victim did not describe the person who shot him when the police talked to him at the emergency room shortly after the shooting. The court found the victim’s explanation credible. The victim did not know the defendant and had never seen him prior to the night in question. The police were not able to ask the victim for a physical description because hospital personnel asked the police to leave so that they could tend to the victim’s wounds. The trier of fact is the arbiter of credibility, and the court’s conclusion that the police were prevented from talking to the victim is supported by the evidence.

In its memorandum of decision, the court also addressed the evidence with respect to the other reliability factors, noting that each case is to be decided on its own facts. See State v. Reid, supra, 254 Conn. 554. The victim had several opportunities to view the defendant prior to the shooting and was looking at him at the time of the crime. The fighting was good both inside and outside the club. The victim paid considerable attention to the defendant during their face-to-face confrontation, their exchange of hostile words and when the defendant drew a knife.

As to the certainty of the victim’s identification of the defendant, Grabowski instructed the victim to take his time and look at the photographs carefully. There was no evidence that the victim was hesitant or uncertain when he selected the defendant’s photograph. Finally, the court concluded that the three and one-half week interval between the crime and the time the victim identified the defendant’s photograph was not so protracted as to render the identification unreliable. For most of that time, the victim was a patient in the hospital. We conclude that the court’s findings are supported by the record and that the court’s inference that the victim’s pretrial identification was reliable was reasonable.

We therefore conclude that the court properly denied the defendant’s motion to suppress and that the victim’s in-court identification of the defendant was not tainted.

Ill

The defendant’s third claim is that the court abused its discretion by permitting the state to identify by name his prior felony convictions, rather than merely the legal classification of those felonies, and also to reveal that at the time he shot the victim, the defendant previously had been convicted of two felonies. The defendant’s claim relates to the evidence necessary to convict him of criminal possession of a firearm pursuant to § 53a-217. Specifically, the defendant argues that § 53a-217 requires evidence only of the classification of the felonies, not the name of the felonies. The defendant also argues that the evidence of the name of the felonies and the number of the defendant’s felony convictions should have been excluded because those facts unfairly prejudiced the jury against him, thereby requiring a new trial.

As the state was ending its case-in-chief, it sought to place into evidence a multipage document concerning the defendant’s arrest and conviction of robbery in the first degree. The defendant agreed to stipulate to the fact that he had been convicted of a felony, but objected to the entire document’s being placed into evidence. The defendant argued strenuously that only the fact that he previously had been convicted of a felony was necessary for the state to prove the element of a felony conviction under § 53a-217. The state agreed that much of the information in the document was irrelevant, but persisted in offering into evidence the fact that the defendant had been convicted on October 22, 1984, of two counts of robbery in the first degree. The defendant continued to object, arguing that the name of the felonies and the number of them were prejudicial to him. The court considered the defendant’s argument, but overruled the objection, concluding that the prejudicial effect, if any, was minimal, as the conviction of two counts of robbery in the first degree arose from acts committed on the same day, the charges were tried together and the judgment of conviction included both counts. The court also charged the jury as to how it was to use that evidence of the defendant’s prior conviction.

“[0]ur standard of review regarding challenges to a trial court’s evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice. ... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. ... It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” (internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 662, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002). The defendant, here, has conceded that his claim is not of constitutional dimension.

“[TJhere are two components to relevant evidence: materiality and probative value .... [E]vidence is relevant if it has a tendency to establish the existence of a material fact.” (Internal quotation marks omitted.) State v. Faria, 47 Conn. App. 159, 169, 703 A.2d 1149 (1997), cert. denied, 243 Conn. 965, 707 A.2d 1266 (1998) . Here, evidence that on the date the victim was shot, the defendant had twice been convicted of robbery in the first degree was relevant and material to prove that he was in criminal possession of a firearm in violation of § 53a-217.

As to the second element pertaining to the relevance of evidence, the probative value of prior misconduct must outweigh the prejudicial effect. See id., 170. “[Relevant evidence that is potentially prejudicial should be excluded . . . where the facts offered may unduly arouse the jury’s emotions, hostility or sympathy . . . .” (Internal quotation marks omitted.) Id., 174. “Prejudice is not measured by the significance of the evidence which is relevant but by the impact of that which is extraneous.” (Internal quotation marks omitted.) Id. “Some degree of prejudice inevitably accompanies the admission of evidence of a defendant’s other misconduct.” Id., 175. “Evidence is prejudicial when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence.” (Internal quotation marks omitted.) Id.

The essence of the defendant’s argument is that it was unnecessary for the court to admit the fact that he twice had been convicted of robbery in the first degree. Facts concerning the defendant’s single conviction of a class B felony were sufficient. In addition, the defendant argues that proof of his conviction of two counts of robbery in the first degree may have influenced the jury to think that he was a hardened criminal. The state counters that it was entitled to put into evidence the most convincing evidence available to meet its burden of proof beyond a reasonable doubt. The state contends that identifying the felony may have helped the defendant as much as it may have hurt him because the jury would not be left to speculate as to the nature of the defendant’s former crime. The court reasoned that because the defendant’s conviction arose out of crimes committed on the same day and were linked at trial, there was no prejudice to him.

Even if we were to assume, without deciding, that the evidence of conviction of two counts of robbery in the first degree was cumulative, the court’s admission of the name and number of the defendant’s felony convictions into evidence was, at most, harmless error. Because the parties stipulated to the fact that the defendant previously had been convicted of a felony, the court so informed the jury by identifying the conviction and the date of the conviction. No lurid details of the robberies were before the jury. Most significantly, the court in its charge stated and repeated that the jury was not to consider the conviction of the robbery charges for any purpose other than relative to the third element of the crime of criminal possession of a firearm. The court specifically instructed the jury that it should not be concerned otherwise with what the defendant had done long ago. A jury is presumed to follow the court’s instructions unless there is a clear indication to the contrary. State v. Booth, 250 Conn. 611, 626, 737 A.2d 404 (1999), cert. denied sub nom. Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). Finally, we cannot perceive thatthe jury was influenced, at least with respect to the assault charge, by the evidence. The jury heard evidence from two eyewitnesses that the defendant shot the victim.

We therefore conclude that the defendant was not prejudiced by the court’s admitting evidence of his prior felony convictions into evidence.

IV

In its brief to this court, the state alerted us to the fact that the court had assumed the role of fact finder with respect to the sentence enhancement provision of § 53-202k. See State v. Dash, 242 Conn. 143, 146-50, 698 A.2d 297 (1997). We agree with the state that the jury and not the court was required to determine whether the defendant used a firearm to commit a class A, B or C felony. State v. Montgomery, 254 Conn. 694, 736, 759 A.2d 995 (2000). We conclude, however, that under the facts of this case, the error was harmless. See State v. Price, 61 Conn. App. 417, 420-21, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001).

“Section 53-202k was enacted as part of a comprehensive legislative plan for dealing with assault weapons. ... It provides for a mandatory five year- term of imprisonment whenever a defendant, in the commission of [any class A, B or C] felony uses . . . any firearm as defined in [General Statutes §] 53a-3.” (Internal quotation marks omitted.) State v. Cooper, 65 Conn. App. 551, 573, 783 A.2d 100, cert. denied, 258 Conn. 940, 786 A.2d 427 (2001). “[T]he five year sentence runs consecutively with, and is in addition to, the sentence imposed for the underlying felony. ... In a jury trial, if the state has accused a defendant of violating § 53-202k, the jury must determine whether the state has proven the elements necessary for a sentence enhancement under that section. . . . Additionally, because a finding under § 53-202k exposes a defendant to a penalty beyond the prescribed statutory maximum for the underlying offense, the sixth and fourteenth amendments to the United States constitution require the state to prove the elements of § 53-202k beyond a reasonable doubt. . . .

“Nonetheless, although a court is required to have the jury determine whether the state proved that the defendant is subject to a sentence enhancement under § 53-202k, failure to do so can constitute harmless error. . . . Such an error is harmless only if it appears beyond a reasonable doubt that the jury would have found that the defendant was subject to a sentence enhancement under § 53-202k had it been instructed on the elements of that section and been permitted to determine whether the state had satisfied its burden of proof.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 573-74.

Under the harmless error analysis, the question in this case is whether it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty [of the enhancement element] absent the error.” Neder v. United States, 527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). In this case, by virtue of the jury’s determination that the defendant had committed assault in the first degree, a class B felony, it also necessarily found that the state had satisfied the element of § 53-202k that the defendant had committed a class B felony. Moreover, the information alleged that the defendant committed the crime by means of a firearm. The jury, therefore, had to have found that the defendant committed the assault with a firearm. Furthermore, when the court charged the jury on the elements of assault in the first degree, it referenced the defendant’s use of a pistol. The fact that the crime was carried out with the use of a firearm was uncontroverted and supported by the overwhelming evidence. Thus, the jury’s finding the defendant guilty of assault in the first degree necessarily included a finding that the defendant had used a firearm in the commission of that offense. See State v. Roman, 67 Conn. App. 194, 211, 786 A.2d 1147 (2001), cert. granted on other grounds, 259 Conn. 920, 791 A.2d 567 (2002).

Accordingly, we conclude that the jury would have found that the defendant was subject to a sentence enhancement under § 53-202k had it been instructed on the elements of that section and permitted to determine whether the state had satisfied its burden of proof. In sum, the court’s failure to submit the applicability of § 53-202k to the jury was harmless, and its imposition of an additional five year term of imprisonment was proper.

The judgments are affirmed.

In this opinion the other judges concurred.

       The defendant was charged in two separate informations, one bearing docket number CR97-514107 for events that occurred on or about October 12, 1997, and the second bearing docket number CR98-517668 for events that occurred on or about January 6, 1998. On June 10, 1998, the court, Clifford,, J., granted the state’s motions to consolidate the cases for trial.

       General Statutes § 53a-59 provides in relevant part: “(a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person ... by means of a deadly weapon or a dangerous instrument; or . . . (5) with intent to cause physical injury to another person, he causes such injury to such person ... by means of the discharge of a firearm.
      “(1)) Assault in the first degree is a class B felony . . . .”

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       General Statutes (Rev. to 1997) § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and has been convicted of a capital felony, a class A felony ... a class B felony ... a class C felony ... or a class D felony .... For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       The defendant has not briefed his claims that the evidence was insufficient to convict him of tampering with a witness. We therefore consider his claim abandoned and will not afford it review. See Strobel v. Strobel, 64 Conn. App. 614, 623, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).

       On the basis of our review of the evidence presented to the jury and our review of the evidence presented at the suppression hearing; see part II; we are of the opinion that in his brief to this court, the defendant has argued inferences drawn from the evidence presented at the suppression hearing with the evidence presented to the jury. The jury was not present at the suppression hearing and, thus, whatever evidence was presented at the suppression hearing cannot be considered in our review of the sufficiency of evidence the jury considered in reaching its verdicts.

       Defense counsel cross-examined the victim, in part, as follows:
      “Q: And you didn’t give the police any description of the shooter that night at the hospital. Correct?
      “A: They only told me that I was in the [club], and I say, yeah, I got shot in the [club]. They don’t say anything else because the doctor say you got to go out and they left.
      “Q: They never asked you to describe the person who shot you in that one—
      “A: Not that day.
      “Q: But you didn’t give them a description of the guy while you were in the hospital that night. Correct?
      “A: No, I might not.
      “Q: But then you talked to the police when you got out of the hospital. Correct?
      “A: Um-hum.”

       See footnote 5.

       The defendant stipulated that he is a convicted felon. See part in.

       To convict a person under § 53a-217, the firearm must be operable. See State v. Banks, 59 Conn. App. 112, 130-32, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). There was no doubt as to the operability of the pistol in question here.

        The defendant claims that his rights under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut were violated.

       Following the evidentiary hearing on the motions to suppress, the defendant withdrew his motion to suppress Guadalupe’s pretrial identification of him.

       See footnote 5.

       In overruling the defendant’s objection, the court stated in part: “[Two robberies] occurred on November 14,1983, and he was tried on that information, and on October 22, 1984, he was sentenced .... Well, if that’s what happened, the fact that he was, on that date, convicted of two robberies that stemmed apparently from the — at least, the robberies occurred on the same date and he was convicted after a trial of those two robberies, then I think I would be inclined to admit that much of it. It’s not like they’re putting in a robbery that he was convicted of on such and such a date, and then another robbery occurring on a completely different date that he was convicted of on another date. * * *

        “I think that given that the two charges apparently emanate from the same incident, and the conviction was on two charges on that particular date, I think the prejudicial effect of that is minimal and it’s being offered to show that he was convicted, and that’s the date he was convicted on. And I think it’s coming in absent a stipulation about what happened on that date, and it should be before the jury rather than just giving them half of it, so to speak.”

       The court charged the jury in part: “A person is guilty of criminal possession of a firearm when he possesses a firearm and has been convicted of a class B felony. . . . Now, here, of course, with reference to the third element, that is, that at the time the defendant possessed the firearm, the defendant had previously been convicted of a class B felony. Counsel have stipulated to the defendant’s prior class B felony convictions for purposes of this third element of the crime. The stipulation was entered into just with respect to the element of this crime. . . . [The defendant] is on trial just for the incident which took place on October 12,1997, and whatever happened or might have happened way back a long time ago in 1984 is to play no role whatsoever in your decision in this case other than that evidence as proof of a necessary element of this particular charge in count three, that is, the prior conviction only.”

       See footnote 4.

       At sentencing, the state argued that ihe court should apply General Statutes § 53-202k when sentencing the defendant. Assault in the first degree is a class B felony. See General Statutes § 53a-59 (b).

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


author: DRANGINIS, J.

text:
    MUNICIPAL FUNDING, LLC v. ZONING BOARD OF APPEALS OF THE CITY OF WATERBURY ET AL.
    (AC 21757)
    Lavery, C. J., and Foti and Dranginis, Js.
    Argued April 30 and September 12
    officially released December 17, 2002

      Franklin G. Pilicy, for the appellant (plaintiff).

      Charles E. Oman III and Elaine M. Skoronski, with whom, on the brief, was Jayne Elser Welch, for the appellees (defendants).
   Opinion

DRANGINIS, J.

The plaintiff, Municipal Funding, LLC, the owner of real property in Waterbury, appeals from the judgment of the trial court dismissing its appeal from the decision of the defendant zoning board of appeals of the city of Waterbury (board), which denied the plaintiffs application for a special exception. The plaintiff, in essence, contends that the court improperly concluded that the board possesses the discretion to deny an application for a special exception on the basis of concern for public safety, when the record lacks any evidence to support such a finding. We agree with the plaintiff and reverse the judgment of the trial court.

The following facts are pertinent to our resolution of the plaintiffs appeal. The plaintiff owns real property at 300 Schraffts Drive, which is in the R.M. moderate density residence district (R.M.) and C.A. commercial artery district (C.A.) as defined by the Waterbury zoning regulations (regulations). The plaintiff filed an application to the board for a special exception to open a convalescent, rest or nursing home on the property pursuant to § 5.13-13 of the regulations. Specifically, in its application, the plaintiff proposed to utilize the property as a long-term, drug free residential treatment facility for adolescents and young adults with substance abuse problems. The proposed facility would be operated by the APT Foundation (foundation), an affiliate of the Yale School of Medicine, and licensed by the department of public health and the department of children and families.

A public hearing on the plaintiffs application ensued. At the hearing, the following evidence was adduced. The foundation intended to utilize the facility as a long-term, drug free residential treatment facility providing educational, vocational and clinical services to approximately 125 adolescents and young adults with severe substance abuse or dependence problems. Most residents of the facility would be referred to the foundation by various state agencies, school systems and the department of correction and generally would remain in the program from six months to two years.

During the hearing, Allen Brown, the chief executive officer of the foundation, and Samuel Ball, the foundation’s director of residential services and an associate professor of psychiatry at Yale Medical School, spoke on behalf of granting the special exception. Brown testified that the foundation, a nonprofit organization that is an affiliate of the Yale School of Medicine, has been in existence since 1968 and has operated the identical program in Newtown for the past fifteen years. Brown stated that the program in Newtown has been very successful for the past fifteen years, but due to the state’s acquisition of the property, the foundation was forced to find a new location in which to operate the facility.

The proposed facility would have a ratio of two residents per one staff worker. The residents would not be permitted to have automobiles, and, although the facility would not be locked, the residents would not be permitted to leave the premises freely. Brown further stated that in the thirty years of operating similar programs, rarely has a resident ever left the facility, but that the few who have wandered away simply return to their respective homes. With respect to the security of the facility, Brown stated that the staff monitors all movement within the building, but the foundation does not employ a special security force. In the thirty years that the foundation has operated similar programs, it has had very few problems with neighbors. The foundation also will not accept violent offenders or sex offenders into its program. He further stated that “[a]ddiction is a medical infirmity . . . equivalent to having diabetes or hypertension or heart disease.” Remaining drug free also is a prerequisite to participation in the program. Residents in the facility would be subjected to random drug tests and would be discharged immediately from the program if the result is positive.

Ball explained that the proposed facility would house fifty staff members, comprised of two physicians, two clinical psychologists, four social workers, four social workers with master’s degrees, four nurses, a vocational counselor and various residential counselors. Ball added that “addiction is a physical disorder . . . because the brain is altered as a function of [drug abuse] . . . [and] that does not go away immediately with the cessation of drugs or alcohol use . . . .”

Opponents to the granting of the special exception also spoke at the public hearing. Several residents, who live in neighborhoods near the proposed facility, expressed their concerns about neighborhood safety, particularly because many people often walk at night. Another person, who owns a business in the vicinity, stated that he feared that the opening of a drug treatment facility would decrease the property rental values in the area. After hearing all of the testimony, the board unanimously voted, with one abstention, to deny the plaintiffs application.

The plaintiff subsequently appealed from the board’s decision to the trial court pursuant to General Statutes § 8-8. Dismissing the plaintiffs appeal, the court concluded that “a review of the record shows that the board had ‘substantial evidence’ to sustain its denial of the special exception application,” and therefore that it could not “say that the board acted arbitrarily . . . .” This appeal followed.

As previously set forth, on appeal to this court, the plaintiff contends that the trial court improperly concluded that the board possesses the discretion to deny a special exception application on the ground of public safety when insufficient evidence exists in the record to support such a finding. Although the plaintiff frames the issue around the board’s discretion, the gravamen of the claim is evidentiary in nature. In essence, the plaintiff argues that because the record lacks any evidence of actual public safety concerns, the board acted arbitrarily and in abuse of its discretion in denying the application. Therefore, the plaintiff urges, the court’s dismissal of the matter was clearly erroneous and warrants our reversal. We are so persuaded.

We first set forth the appropriate standard of review. Whether a zoning board grants a special exception, also known as a special permit, essentially is a discretionary process. Irwin v. Planning & Zoning Commission, 244 Conn. 619, 626, 711 A.2d 675 (1998). “The basic rationale for the special permit ... is that while certain land uses may be generally compatible with the uses permitted as of right in a particular zoning district, their nature is such that their precise location and mode of operation must be individually regulated because of the particular topography, traffic problems, neighboring uses, etc., of the site.” (Internal quotation marks omitted.) Whisper Wind Development Corp. v. Planning & Zoning Commission, 32 Conn. App. 515, 519, 630 A.2d 108 (1993), aff'd, 229 Conn. 176, 640 A.2d 100 (1994). A special permit enables a property owner to utilize the property in a manner expressly allowed by the local zoning regulations, subject, of course, to satisfying the standards set forth in the regulations. Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 46 Conn. App. 566, 569, 700 A.2d 67, cert. denied, 243 Conn. 935, 702 A.2d 640 (1997). Moreover, “considerations such as public health, safety and welfare, which are enumerated in zoning regulations, may [also] be the basis for the denial of a special permit.” Irwin v. Planning & Zoning Commission, supra, 627.

“When ruling upon an application for a special [exception], a planning and zoning board acts in an administrative capacity. . . . Generally, it is the function of a zoning board or commission to decide within prescribed limits and consistent with the exercise of [its] legal discretion, whether a particular section of the zoning regulations applies to a given situation and the manner in which it does apply. The [Appellate Court and] trial court [must] decide whether the board correctly inteipreted the section [of the regulations] and applied it with reasonable discretion to the facts. . . . In applying the law to the facts of a particular case, the board is endowed with a liberal discretion, and its action is subject to review by the courts only to determine whether it was unreasonable, arbitrary or illegal.” (Citations omitted; internal quotation marks omitted.) Id., 627-28. Although a zoning commission or board possesses the discretion to determine whether a proposal meets the standards established in the regulations, it lacks the discretion to deny a special permit if a proposal satisfies the regulations and statutes. Id., 628.

“[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing .... The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings. . . . [E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision. . . . More specifically, the trial court must determine whether the board has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, must determine whether the court properly concluded that the board’s decision to [deny the application for a special permit] was arbitrary, illegal or an abuse of discretion.” (Citations omitted; internal quotation marks omitted.) Stancuna v. Zoning Board of Appeals, 66 Conn. App. 565, 567-68, 785 A.2d 601 (2001). “The evidence, however, to support any such [decision] must be substantial . . . .” (Internal quotation marks omitted.) Quality Sand & Gravel, Inc. v. Planning & Zoning Commission, 55 Conn. App. 533, 540, 738 A.2d 1157 (1999); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 61f.

Before analyzing the merits of the plaintiffs claim, we first must set forth the applicable zoning regulations and statutes that formed the basis of the board’s decision. Section 5.13-13 of the regulations provides in relevant part that “[convalescent homes, rest homes, and nursing homes may be a permitted use in the R.M., R.H. [high density residence] and C.A. districts,” subject to a public hearing approval of a special exception by the board of appeals. General Statutes § 8-2 (a) further provides that zoning regulations “may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a . . . zoning board of appeals . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values . . . .” (Emphasis added.) Article I, § 1.1, of the regulations reiterates the goal of protecting public safety, health and welfare. Moreover, § 7.24 of the regulations requires all of the board’s actions to be “made in accordance with the Connecticut General Statutes . . . and in harmony with the purpose and intent expressed in Article I, section 1.1 hereof.”

The parties do not dispute whether the plaintiffs proposal satisfied the physical requirements of § 5.13-13, nor do they contest the classification of the facility as a convalescent, rest or nursing home. As the court noted, the board did not formally state its reasons for denying the plaintiffs application for a special exception. Accordingly, the court thoroughly reviewed the record to ascertain the reasoning behind the board’s decision. The court’s memorandum of decision, and our own review of the record, evinces that the board denied the plaintiffs application on the basis of its concern for public safety. Thus, the issue here is whether the board acted arbitrarily and in abuse of its discretion when it denied the plaintiffs application for a special exception on the basis of concern for public safety.

On the basis of our review of the record, we conclude that the board acted arbitrarily in denying the plaintiffs application. There was no evidence or testimony presented to the board to warrant a finding that this particular proposed facility posed a threat to public safety. As the court stated, Brown testified that the facility is not locked and that the program does not permit residents to keep automobiles on the property. Brown further stated, however, that in thirty years of running similar' programs, residents rarely have wandered away, and the few who have left return to their own homes and do not go into the surrounding neighborhoods. Since the inception of the program, there have been few, if any, security or safety issues. The program was run with such success in Newtown that it received special recognition from that town. Moreover, those who have committed either violent or sex crimes are not admitted into the program. Abstinence from all substances also is a prerequisite to entering the facility, and those who relapse, or fail a randomly administered drug test are ejected immediately.

Although several residents from the area spoke against the granting of the permit, they solely voiced their own personal views and fears. As the court stated, “[residents testified that there is a perception that the proposed facility will be unsafe for the neighborhood . . . .” (Emphasis added.) None of the opponents, however, presented any factual evidence or data to demonstrate how the proposed facility would threaten their safety or lower property values. For example, there was no evidence presented to the board, from expert or lay witnesses, regarding safety breaches at the foundation’s other facilities, problems that the foundation has had with residents, any nuisances that the program has caused in other neighborhoods, or that the prospective residents themselves would be dangerous. Although we acknowledge the concerns voiced by the neighbors, it was unreasonable and arbitrary for the board to deny the special exception on the basis of those unsubstantiated, personal statements made by people without any prior knowledge of or experience with the proposed facility.

In dismissing the plaintiffs appeal, the court also appears to have relied on the plaintiffs testimony regarding the fact that the facility would be unlocked and that a security force would not be employed. We conclude that those two bare facts, without more, are insufficient to support a finding that the proposed facility would compromise public safety. Given the plaintiffs testimony that it operated an identical program in Newtown for the past fifteen years with very few, if any, incidents, we fail to discern how the plaintiffs statements constituted proof of a threat to public safety. Moreover, neither the plaintiff nor its opponents presented to the board any specific examples or prior situations of security breaches linking the lack of locks and a security force to public safety concerns. To the contrary, the fact that there have been relatively few, if any, problems in Newtown, a facility that was unlocked and without a security force, demonstrates that the proposed facility does not pose a threat to public safety. We further note that there have been no incidents where a resident has wandered into the surrounding communities.

We therefore conclude that there is no evidence in the record of any actual or reasonable public safety concerns. Accordingly, because the substantial evidence in the record does not support the board’s reason for denying the plaintiffs application for a special exception, the board’s decision was unreasonable and arbitrary. The court thus improperly dismissed the plaintiffs appeal.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the plaintiffs appeal.

In this opinion the other judges concurred.

       Also named as defendants were Joseph Caiazzo, the board’s chairman, and Cassandra McDaniel Pender, the city clerk of the city of Waterbury.

       The plaintiff raises the following two issues in its brief, which we deem to be the same claim: “I. Did the trial court err in concluding that the [board] has the discretion to deny a special permit on general grounds of public safety and welfare when there is no evidence in the record to support a public safety concern?
      “II. Did the trial court err in concluding that the [board] has the unlimited discretion to deny a special permit on the basis of speculation or perception only as to a possible public safety concern?”

       Section 5.13-13 of the Waterbury zoning regulations provides in relevant part: “Convalescent homes, rest homes, and nursing homes may be a permitted use in the R.M., R.H. [high density residence] and C.A. districts, subject to a public hearing [and] approval of a special exception by the zoning board of appeals . . .

       The state apparently notified the foundation that it had to vacate the Newtown facility due to private redevelopment plans.

       We read the plaintiffs claim to be that the board exceeded its discretion and not that the board lacks any discretion to determine whether to grant a special exception, as the defendant suggests. To the extent that the plaintiff intended to make such an argument, however, as will be explained, we reject the notion that the board lacked any discretion in the matter.

       A special exception and a special permit are synonymous terms and may be used interchangeably. Grosso v. Zoning Board of Appeals, 69 Conn. App. 230, 242 n.7, 794 A.2d 1016 (2002).

       Section 5.13-13 of the Waterbury zoning regulations provides further requires the proposed convalescent home, rest home or nursing home to meet certain standards with respect to occupancy, parking, size, location and placement of the facility on the property itself. It appears, and the parties do not dispute, that the plaintiffs proposal meets all of those conditions.