text:
    LOREN E. BAKER, JR. v. LAURIE E. BAKER
    (AC 16795)
    Foti, Spear and Hennessy, Js.
    Submitted on briefs December 5, 1997
    officially released February 10, 1998

      Kenneth J. McDonnell filed a brief for the appellant (plaintiff).

      Lisa A. Faccadio and Christine S. Dorsey filed a brief for the appellee (defendant).
   Opinion

FOTI, J.

The plaintiff, Loren E. Baker, Jr., appeals from the judgment of the trial court granting his motion to modify the judgment of dissolution of marriage and awarding him $25 per week in child support. The plaintiff claims that the trial court (1) improperly found that the parties’ financial agreements justified a substantial deviation from the child support guidelines (2) failed to identify the specific criteria that justified its deviation from the guidelines, (3) failed to calculate a child support order based on the guidelines before finding the order to be inappropriate, and (4) abused its discretion in deviating from the guidelines by such a substantial amount. We reverse the judgment of the trial court.

The marriage of the parties was dissolved on February 6, 1991. The terms of the decree were based on a written agreement of the parties that was approved by the court and incorporated by reference in the judgment. The parties were awarded joint custody of their two minor children. The primary residence of the children was to be with the plaintiff. Pursuant to the judgment, the defendant, Laurie E. Baker, had visitation rights with the children three weekends a month from Friday through Sunday and every Wednesday overnight. The defendant was not ordered to pay child support, but was responsible for the children’s needs while they were physically in her care. The judgment specifically allowed for modification to permit the plaintiff to seek child support in the future. The court noted that as of October 1, 1991, subsequent to the rendering of the judgment, General Statutes (Rev. to 1991) § 46b-86 would be amended to recognize a substantial deviation from the guidelines as a ground for modification of an order for child support. The parties’ agreement, however, required both a showing of a substantial change in circumstances and a substantial deviation from the guidelines to warrant a modification.

On October 7,1991, the parties returned to court and filed a written stipulation in response to the plaintiffs motion to modify the defendant’s visitation rights and to order the defendant to pay child support. Pursuant to their agreement, the parties modified the hours and days of visitation and further agreed that there would be no child support paid to the plaintiff in consideration of the defendant’s representation that she would feed the children dinner during her visits. In acting on the plaintiffs motion, the court made no finding that the application of the guidelines would be inequitable or inappropriate. In addition, the court made no reference to criteria that would justify a deviation from the amount specified in the guidelines. See Regs., Conn. State Agencies § 46b-215a-3.

On November 28, 1994, the parties filed a stipulation with the court in response to the plaintiffs second motion for modification. Pursuant to the agreement, the defendant’s weekday visitations with the children were eliminated and her weekend visitation schedule was reduced to every other weekend during the school year. The plaintiff did not seek child support and the parties did not submit financial affidavits.

On September 10, 1996, the plaintiff filed a third motion for modification seeking child support pursuant to the guidelines. The parties filed financial affidavits and a hearing was held on October 15, 1996, at which time the parties agreed that the amount of child support recommended by the guidelines was between $85 and $86 per week. The trial court found a substantial change in the circumstances of the parties because of the defendant’s reduced visitation schedule. On December 24, 1996, the trial court entered the following order: “The court finds that it would be inappropriate to apply the guidelines, as the entire history of the financial agreements made by the parties must be considered. Support orders have not entered in the past, in consideration of [the defendant’s] visitation expenses and the prior financial agreements [of the parties]. In 1994, support was not before the court. Given that the [defendant’s] visitation has decreased, the court finds it appropriate to enter an order, though not, because of the earlier agreements, one in accord with the guidelines. The court orders the defendant to pay $25 per week (except for her vacation weeks) to the plaintiff as child support, pursuant to contingent wage withholding.”

The plaintiff argues that it was improper for the trial court to focus on the financial agreements of the parties without explaining how those agreements benefitted the children so as to justify a deviation from the guidelines. We agree.

“General Statutes § 46b-215b provides that the child support guidelines shall be considered in all determinations of child support amounts.” McHugh v. McHugh, 27 Conn. App. 724, 727, 609 A.2d 250 (1992). Section 46b-215a-3 (a) of the Regulations of Connecticut State Agencies provides that “[t]he amount of current support calculated under the child support guidelines is presumed to be the correct amount to be awarded. The presumption may be rebutted by a specific finding on the record that the application of such guidelines would be inequitable or inappropriate in a particular case. Any such finding shall state the amount of support that would have been required under the guidelines and include a justification for the variance. Only the deviation criteria described in this section establish sufficient bases for such findings.” (Emphasis added.)

Although the trial court found it appropriate to enter an order not in accord with the guidelines, it failed to refer specifically to the criteria that justified a deviation from the guidelines. See, e.g., Turner v. Turner, 219 Conn. 703, 720, 595 A.2d 297 (1991) (court must make specific finding on record that application of guidelines inequitable or inappropriate based on factors set forth in methodology and general provisions of guidelines as well as specific figures set forth for defendant’s adjusted income level); Feliciano v. Feliciano, 37 Conn. App. 856, 859, 658 A.2d 141 (1995), aff'd, 236 Conn. 719, 674 A.2d 1311 (1996) (presumption that amount of support calculated under guidelines appropriate amount of support to be ordered by court “can be rebutted only if the trial court finds, on the record, that it would be inequitable or inappropriate to apply the guidelines because of evidence satisfying one of the deviation criteria”). Because the trial court did not justify its decision to deviate from the guidelines on one of the deviation criteria set forth in the regulations, we cannot conclude that the trial court properly relied on the terms of the parties’ previous financial agreements to justify a deviation from the guidelines.

We conclude that the trial court failed to identify properly the deviation criteria justifying its order of child support that was not in accord with the guidelines.

The judgment is reversed and the case is remanded for a new hearing.

In this opinion the other judges concurred.

       The plaintiff claims that pursuant to the child support guidelines, he is entitled to more than $25 per week in child support.

       General Statutes § 4Gb-86 provides in relevant part: “(a.) Unless and to the extent that the decree precludes modification, any final order for the periodic payment of . . . support . . . may a.t any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in circumstances of either party or upon a showing that the final order for child support substantially deviates from the child support guidelines established pursuant to section 46b-215a, unless there was a specific finding on th£ record that the application of the guidelines would be inequitable or inappropriate. There shall be a rebuttable presumption that any deviation of less than fifteen per cent from the child support guidelines is not substantial and any deviation of fifteen per cent or more from the guidelines is substantial. Modification may be made of such support order without regard to whether the order was issued before, on or after May 9, 1991. In determining whether to modify a child support order based on a substantial deviation from such child support guidelines the court shall consider the division of real and personal property between the parties set forth in the final decree and the benefits accruing to the child as a result of such division. After the date of judgment, modification of any child support order issued before or after July 1, 1990, may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of the dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. ...” (Emphasis added.)

       At the time they entered into their agreement, the parties were aware that the guidelines would become effective on March 1, 1991.

       The guidelines would have required a payment of child support from the defendant to the plaintiff in the amount of $105.74 per week.

       In his motion, the plaintiff claimed that “[s]ince the date of judgment, there has been a significant change in circumstances including, but not limited to, the fact that the present lack of an order of child support is not in compliance with the child support guidelines.”

       General Statutes § 46b-215b (a) provides: “The child support and arrearage guidelines promulgated pursuant to section 8 of public act 85-548 and any updated guidelines issued pursuant to section 46b-215a shall be considered in all determinations of child support amounts and payment on arrearages and past due support within the state. In all such determinations there shall be a rebuttable presumption that the amount of such awards which resulted from the application of such guidelines is the amount of support or payment on any arrearage or past due support to be ordered. A specific finding on the record that the application of the guidelines would be inequitable or inappropriate in a particular case, as determined under criteria established by the commission under section 46b-215a, shall be sufficient to rebut the presumption in such case.”

       In deviating from the guidelines, the trial court relied on the “entire history of the financial agreements made by the parties.” This is not one of the deviation criteria set forth in the regulations. In fact, the deviation criteria most similar to what the court referred to as “the entire history of the financial agreements made by the parties” is § 46b-215a-3 (b) (5) of the Regulations of Connecticut State Agencies, which provides: “Coordination of total family support. In some cases, the trier of fact may consider child support in conjunction with a determination of total family support, property settlement, and tax implications. When the trier of fact finds that such considerations will not result in a lesser economic benefit to the child, it may be appropriate to deviate from the guidelines amount for the following reasons:
      “(A) division of assets and liabilities
      “(B) provision of alimony
      “(C) tax planning considerations.”

       Because we remand for a new hearing, we find it unnecessary to address the other issues raised by the plaintiff on appeal.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. MAURICE BILLIE
    (AC 15347)
    Lavery, Hennessy and Dupont, Js.
    Argued November 7, 1997
    officially released February 17, 1998

      James B. Streeto, special public defender, with whom, on the brief, was Michael D. Quinn, law student intern, for the appellant (defendant).

      John A. East III, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Maurice Billie, appeals from the judgment of conviction, rendered after a jury trial, of two counts of manslaughter in the first degree as an accessory in violation of General Statutes §§ 53a-8 and BSa-SS, one count of commission of a class A, B, or C felony with a firearm in violation of General Statutes § 53-202k, and one count of carrying a firearm without a permit in violation of General Statutes § 29-35.

On appeal, the defendant claims that the trial court improperly (1) struck the testimony of the defendant’s expert witness regarding behavioral changes caused by the use of an intoxicant known as illy, (2) instructed the jury that it should draw an inference if the inference was reasonable and (3) denied the defendant’s motion to suppress his confession. In addition, the defendant asks this court to declare General Statutes § 53-202k unconstitutional as a violation of the separation of powers doctrine and as a cruel and unusual punishment, and to vacate his conviction under that statute.

The jury reasonably could have found the following facts. On September 3, 1994, the defendant spent the evening drinking alcohol and smoking marijuana and illy. The next day, the defendant went to a cookout hosted by friends where he and two friends smoked “blunts.”

Later in the day, the defendant met his friend Andre Cinicola, who had a .40 caliber semiautomatic pistol in a shoulder holster. The defendant put on the holster and weapon and covered them with a leather jacket. The defendant agreed to purchase marijuana for Cinicola and two female friends. The defendant then borrowed a black Mazda Miata from Marquis Clark, and he and Cinicola drove to Congress Avenue in New Haven to purchase marijuana from curbside dealers. During this time, acquaintances of the defendant drove up in a gray Chrysler and told him and Cinicola that members of a gang known as the Stickup Boys were nearby driving in a blue Mustang. The Stickup Boys were a gang that had recently engaged in a shooting and robbing spree in the inner city neighborhoods and housing projects in the New Haven area. The occupants of the Chrysler stated that they intended to “get” the Stickup Boys and drove off to find them. The defendant and Cinicola followed.

Minutes later, the Chrysler and the Miata came upon a blue Mustang with tinted windows. Believing that the Mustang was occupied by the Stickup Boys, the drivers of the Chrysler and the Miata pulled behind the car, and the occupants of the Chrysler fired several shots at the Mustang. The Mustang left at a high rate of speed up Sherman Avenue with the other two cars in pursuit. Attempting to overtake the Mustang, the other cars ran red lights and stop signs, traveling in excess of fifty miles per hour and swerving in and out of oncoming traffic.

The defendant positioned the Miata alongside the driver’s side window of the Mustang. Cinicola took the pistol from the defendant and fired two shots at the Mustang. The pistol jammed and Cinicola attempted to clear the weapon while the pursuit continued. Cinicola fired two more shots at the Mustang. One of the bullets struck the driver in the head, either killing or incapacitating him instantly and causing him to lose control of the car. The Mustang crashed into a nearby office building. The defendant also lost control of the Miata, which jumped the curb and skidded sideways along the sidewalk until it collided with a utility pole located seventy feet from the Mustang. The last portion of the chase and shootout was observed by three New Haven police officers who were near the location of the car crashes.

The police officers found Cinicola on the sidewalk next to the Miata. The defendant was trapped in the driver’s seat, and rescue personnel had to cut him out of the car before they could transport him to a hospital. Two passengers in the backseat of the Mustang had minor injuries and the two passengers in the front seat each suffered fatal gunshot wounds. The driver, George Goforth, was killed by a single gunshot wound to the head. The front seat passenger, Roshawnda Crenshaw, was killed by a single gunshot wound to the chest. Ballistics testing confirmed that the bullet that killed Crenshaw was fired from Cinicola’s gun. The bullet that killed Goforth passed through his skull and was never recovered.

The murder weapon was recovered near the Miata and tests revealed Cinicola’s left index fingerprint. Several shell casings were recovered and several live, unfired rounds were found in the passenger compartment of the Miata. No weapon was found in the Mustang, and evidence later revealed that the defendant knew all four occupants and was a close friend of the two who were killed and that none of them was connected to the Stickup Boys. The tinted windows of the Mustang had prevented the defendant and Cinicola from identifying the occupants of the Mustang.

I

The defendant first claims that the trial court improperly struck the testimony of the defendant’s expert witness regarding behavioral changes caused by the use of illy. He argues that the striking of the testimony violated his right to present a defense under the sixth and fourteenth amendments to the United States constitution, and article first, § 8, of the Connecticut constitution. We are unpersuaded.

The following additional facts are necessary to our resolution of this claim. Over the objection of the prosecution, the defendant introduced the testimony of Jeremy August, a psychiatrist, on the general effects of the drug illy. During cross-examination, August testified that he was not testifying as to the effects of illy on the defendant in particular and that he had not reviewed the defendant’s police reports or medical records. Defense counsel objected, stating that August “was not brought in here to testify about [the defendant but only] as an expert to testify about the effects of illy on individuals who ingest it ... . not whether [the defendant] ingested it.” The trial court then excused the jury and, over the defendant’s objection, ordered the entire testimony of August stricken as irrelevant.

“The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. State v. Negron, 221 Conn. 315, 328, 603 A.2d 1138 (1992). In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. Id.; State v. Kemp, 199 Conn. 473, 479, 507 A.2d 1387 (1986). State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992).” (Internal quotation marks omitted.) State v. Smith, 46 Conn. App. 285, 291, 699 A.2d 250, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997).

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. State v. Campbell, 225 Conn. 650, 654, 626 A.2d 287 (1993); State v. Kemp, [supra, 199 Conn. 476]; State v. Palmer, 196 Conn. 157, 166, 491 A.2d 1075 (1985); Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973); Coffin v. Laskau, 89 Conn. 325, 330, 94 A. 370 (1915). State v. Esposito, 235 Conn. 802, 834, 670 A.2d 301 (1996). Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Correa, 241 Conn. 322, 353-54, 696 A.2d 944 (1997).

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962). One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. State v. Blake, 69 Conn. 64, 76, 36 A. 1019 (1897). . . . Evidence is irrelevant or too remote if there is such a want of open and visible connection between the evidentiary and principal facts that, all things considered, the former is not worthy or safe to be admitted in the proof of the latter. State v. Kelly, 77 Conn. 266, 269, 58 A. 705 (1904). A party is not required to offer such proof of a fact that it excludes all other hypotheses; it is sufficient if the evidence tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. State v. Briggs, [179 Conn. 328, 332, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980)]. . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, so long as it is not prejudicial or merely cumulative. State v. Miller, [202 Conn. 463, 482, 522 A.2d 249 (1987)]; State v. Morrill, 197 Conn. 507, 548, 498 A.2d 76 (1985). . . . C. Tait& J. LaPlante, [Connecticut Evidence (2d Ed. 1988)] § 8.1.1, pp. 225-26. . . . State v. Prioleau, [235 Conn. 274, 305-306, 664 A.2d 743 (1995)].” (Internal quotation marks omitted.) State v. Kiser, 43 Conn. App. 339, 361-62, 683 A.2d 1021, cert. denied, 239 Conn. 945, 686 A.2d 122, cert. denied, 520 U.S. 1190, 117 S. Ct. 1478, 137 L. Ed. 2d 690 (1997).

The trial court improperly excluded the expert testimony of August. August should have been allowed to testily as to illy and its effect. He possessed a special knowledge of illy, not common to the average person, and his testimony would have aided the jury in considering the issue of intoxication. The relevant issue was whether the defendant was under the influence of illy and whether the intoxication affected his capacity to form a specific intent. Testimony concerning the composition of illy and its effect would have aided the jury in considering those issues. To exclude this testimony was an abuse of discretion.

“Whether a trial court’s erroneous restriction of a defense witness’ testimony in a criminal trial deprives a defendant of his due process rights is a question that must be answered on a case-by-case basis. State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988).” State v. Flanders, 214 Conn. 493, 500, 572 A.2d 983, cert. denied, 498 U.S. 901, 111 S. Ct. 260, 112 L. Ed. 2d 217 (1990). “The burden of proving the harmfulness of the error depends upon whether the error is merely evidentiary or is of constitutional magnitude. Where evidentiary error is claimed, the defendant bears the burden of proving the harmfulness of the error before a new trial will be granted. Where the claimed error is one of constitutional magnitude, however, the state must prove that the error is harmless beyond a reasonable doubt. State v. Torres, 210 Conn. 631, 642-43, 556 A.2d 1013 (1989).” State v. Sauris, 227 Conn. 389, 413, 631 A.2d 238 (1993).

“We have often held that the admissibility of evidence is a matter of state law and unless there is a resultant denial of fundamental fairness or the denial of a specific constitutional right, no constitutional issue is involved. . . . State v. Vilalastra, [207 Conn. 35, 46, 540 A.2d 42 (1988)]. Moreover, we have declined to attach constitutional significance to the erroneous admission of expert testimony concerning an ultimate fact. Id., 47. When a trial error in a criminal case does not involve a constitutional violation the burden is on the defendant to demonstrate the harmfulness of the court’s error. State v. Ruth, 181 Conn. 187, [197], 435 A.2d 3 (1980). The defendant must show that it is more probable than not that the erroneous action of the court affected the result. Id.; State v. McClain, 171 Conn. 293, 300, 370 A.2d 928 (1976). State v. Jones, [supra, 205 Conn. 732], State v. Vilalastra, supra, 47.” (Internal quotation marks omitted.) State v. Campbell, supra, 225 Conn. 657.

The trial court properly instructed the jury as to the lesser included offense of manslaughter in the first degree. General Statutes § 53a-55. The jury was further instructed that evidence of intoxication could be considered as to whether the defendant possessed the specific intent to cause serious physical harm under § 53a-55 (a) (1), but that evidence was not to be considered in determining whether the defendant possessed the general intent under § 53a-55 (a) (3). The jury found the defendant guilty of the lesser included offense of manslaughter in the first degree in violation of § 53a-55 (a) (1).

In determining whether the trial court error was harmless, we must determine whether the error complained of contributed to the verdict obtained. Although the trial court should have admitted August’s testimony on the drug illy, the error did not affect the jury’s verdict. If the jury had believed the additional evidence of intoxication and concluded that the defendant was so intoxicated that he could not form the specific intent to cause serious bodily harm, the jury would have returned the same verdict of guilty of manslaughter in the first degree. The only distinction is that the jury would have returned a verdict under § 53a-55 (a) (3) instead of § 53a-55 (a) (l). This distinction, however, is of no moment.

Under either statutory provision, the defendant is guilty of manslaughter in the first degree. Cf. State v. Dyson, 217 Conn. 498, 503, 586 A.2d 610 (1991); State v. Maselli, 182 Conn. 66, 73, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); State v. Delgado, 8 Conn. App. 273, 274, 513 A.2d 701 (1986). It is irrelevant whether the defendant was found guilty under § 53a-55 (a) (1) or § 53a-55 (a) (3). Any error, therefore, is harmless.

II

The defendant next claims that the trial court improperly instructed the jury that it should draw an inference if the inference was reasonable. The defendant posits that, consequently, the trial court “shifted” or “diluted” the state’s burden of proof. We disagree.

The defendant concedes that this claim is not properly preserved for appellate review and seeks review pursuant to State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), and the plain error doctrine. Practice Book § 4061. The defendant asserts that the trial court’s allegedly improper instruction violated his due process rights under the fourteenth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. “Since the record is adequate for review and the claim advanced implicates a fundamental constitutional right; see Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); the defendant has satisfied the first two prongs of Golding, and is entitled to a review of [his] unpreserved claim. State v. Tangari, 44 Conn. App. 187, 193, 688 A.2d 1335, cert. denied, 241 Conn. 901, 693 A.2d 304 (1997).” (Internal quotation marks omitted.) State v. Chapman, 46 Conn. App. 24, 29-30, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997). We conclude, however, that a constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

The following facts are relevant to the resolution of this claim. In the course of its charge, the trial court stated: “It is your duty to determine the facts and in so doing you should carefully consider and weigh the arguments [of] counsel as to the facts. In deciding the facts you must consider all the evidence and it is your duty to draw such reasonable and logical inferences from such facts as you find proven. ” (Emphasis added.) Later in the charge, the court stated: “The only way in which a jury can determine what a person’s intention was at any given time, aside from the man’s own testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct and any statements made by that person and, from those, infer what his intention was. To draw such an inference is not only the privilege but also the duty of the jury, provided, of course, the inference drawn is a reasonable inference.” (Emphasis added.) The court subsequently repeated this instruction in response to a question from the jury.

First, we set out our standard of review of a constitutional attack on the instructions of the trial court. “[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Prioleau, [supra, 235 Conn. 284].” (Internal quotation marks omitted.) State v. Taheri, 41 Conn. App. 147, 157, 675 A.2d 458, cert. denied, 237 Conn. 931, 677 A.2d 1374 (1996).

Our review of the charge as a whole leads us to conclude that the trial court fully and fairly met its responsibility to instruct the jury in a manner that adequately guided the jury to a fair and just verdict. See State v. Patterson, 35 Conn. App. 405, 419, 646 A.2d 258, cert. denied, 231 Conn. 930, 649 A.2d 254 (1994). This court recently addressed a challenge to a similar instr uction in State v. Taheri, supra, 41 Conn. App. 156. In Taheri, the trial court instructed the jury that “if you find those certain facts to have been proved that the only reasonable inference to be drawn from the existence of the facts is that the accused committed the crime charged, then it is your duty to draw that inference and find him guilty.” Id. This court held that “[t]his somewhat syllogistic statement merely informed the jury that if the only reasonable conclusion that it could reach was that the accused committed the crime charged beyond a reasonable doubt, then consequently, it was their duty as jurors to find the accused guilty. See State v. Santiago, 17 Conn. App. 273, 279, 552 A.2d 438 (1989).” State v. Taheri, supra, 158. We find no meaningful distinction between the challenged instruction in the present case and the instruction in Taheri. Viewing the charge as a whole, we conclude that the statement did not mislead the jury and that no injustice has resulted.

Ill

The defendant next claims that the trial court improperly denied his motion to suppress his confession. The defendant claims that he did not voluntarily, knowingly or intelligently waive his rights pursuant to Miranda v. United States, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and, alternatively, that the confession was involuntary because it was induced by promises of leniency by the police. We are unpersuaded.

The following facts are necessary to our resolution of this claim. The trial court conducted a two day hearing on the defendant’s motion to suppress. The court orally ruled on the motion and made the following findings of fact. “[0]n September 5 at about 9 p.m., the defendant was confined at Yale-New Haven Hospital for medical care. Three police officers, Detective [William] Piascyk, Detective Sergeant Howard and Detective [Daniel] Gleason went to Yale-New Haven Hospital to interview the defendant. A doctor at the hospital told them that they could speak to the defendant. The police then did speak to the defendant and at that time, based on their observations, he was not under the influence of any alcohol or drugs that would interfere with his ability to understand what they were telling him. At the time the police spoke to the defendant at the hospital he was . . . handcuffed to the bed. There were police officers stationed at the hospital to assure both the defendant’s safety and that he would remain there. Clearly, the defendant was in custody and the questioning by the police was interrogation.

“At the time of the statement given by the defendant, which was taped, the defendant was twenty-four years old. He had completed tenth grade education. He had two prior convictions and at the time that the statement was taken there were three criminal matters pending. The defendant was familiar with the criminal procedure involving arraignments and prior to taking the taped statement the police did read to him his rights. He was given a blue card which explained his Miranda rights. He signed it and dated it September 5, 1994. The defendant understood his Miranda rights and, understanding them, he waived those rights and the waiver was voluntary, knowing and intelligent. There was no threat or promise or coercion by the police. For the record, as part of the court’s finding, the court does find that prior to taking the taped statement of the defendant, the police had already taken the taped statement of Andre Cinicola and prior to taking his taped statement they did play a portion of the taped statement of Andre Cinicola to the defendant, and it was subsequent to that that the defendant agreed to give a taped statement.” The court subsequently denied the defendant’s motion to suppress the confession.

“Whether the defendant has knowingly and intelligently waived his rights under Miranda depends in part on the competency of the defendant, or, in other words, on his ability to understand and act upon his constitutional rights. . . . Factors which may be considered by the trial court in determining whether an individual had the capacity to understand the warnings include the defendant’s experience with the police and familiarity with the warnings ... his level of intelligence, including his IQ . . . his age ... his level of education ... his vocabulary and ability to read and write in the language in which the warnings were given . . . intoxication . . . his emotional state . . . and the existence of any mental disease, disorder or retardation. . . . State v. Toste, 198 Conn. 573, 580-81, 504 A.2d 1036 (1986).” (Internal quotation marks omitted.) State v. Jones, 44 Conn. App. 476, 481, 691 A.2d 14, cert. denied 241 Conn. 901, 693 A.2d 304 (1997).

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... Practice Book § 4061; State v. Oquendo, 223 Conn. 635, 645, 613 A.2d 1300 (1992); State v. Kyles, 221 Conn. 643, 660, 607 A.2d 355 (1992). [Wjhere 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 .... State v. Colvin, 241 Conn. 650, 656, 697 A.2d 1122 (1997).” (Internal quotation marks omitted.) State v. Joyce, 243 Conn. 282, 288, 705 A.2d 181 (1997).

“In analyzing the defendant’s claim, this court must take the facts as found by the trial court unless those findings are clearly erroneous. . . . This court cannot retry the facts or reconsider the credibility of witnesses. . . . On appeal in a case involving the question of voluntariness, however, our deference to the trial court’s findings on questions of this nature is qualified by the necessity of an independent examination of the entire record to determine whether the trial court’s findings of voluntariness [are] supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Janice, 20 Conn. App. 212, 216, 565 A.2d 553, cert. denied, 213 Conn. 811, 568 A.2d 795 (1989).

The trial corut has broad discretion in evaluating the evidence and testimony presented before it. State v. Sharpe, 195 Conn. 651, 658-59, 491 A.2d 345 (1985). Upon review of the entire record, we cannot conclude that it was clearly erroneous for the trial court to find that “[t]here was no threat or promise or coercion by the police” or that it was unreasonable for the trial court to have concluded that the defendant’s waiver was voluntarily, knowingly and intelligently given.

IV

Finally, the defendant asks this court to declare § 53-202k unconstitutional as a violation of the separation of powers doctrine and as a cruel and unusual punishment, and to vacate his conviction under that statute.

This issue is controlled by State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997). “[Section] 53-202k is a sentence enhancement provision and not a separate crime. Consequently, although the defendant’s total effective sentence of [forty-five] years was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.” Id., 150.

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant to a total effective term of imprisonment of forty-five years in accordance with this opinion.

In this opinion the other judges concurred.

       The defendant was charged in the long form information with two counts of murder in violation of General Statutes § 53a-54a. The jury returned a verdict of guilty on each of the two counts to the lesser included offense of manslaughter in the first degree.

       Illy is the street name for a drug consisting of a nonuniform mixture of phencyclidine (PCP), wood alcohol, methanol and formaldehyde.

       A blunt typically is a small cigar that is hollowed out and filled with illy and smoked in the manner of a marijuana cigarette.

       General Statutes § 53a-55 provides in relevantpart:”(a) Aperson is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person ... or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       In addition to testimony from the defendant, two witnesses testified that they had smoked illy with the defendant and gave a general description of the drug’s effect.

       It is noted that the jury was not instructed on any lesser included offenses other than first degree manslaughter in violation of General Statutes §§ 53a-55 (a) (1) and 53a-55 (a) (3).

       “Under Golding, a defendant can prevail on an unpreserved claim of constitutional error only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. [State v. Golding, supra, 213 Conn. 239-40.] State v. Graham, 33 Conn. App. 432, 441-42, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994). The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review. State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986); see also State v. Thurman, 10 Conn. App. 302, 306, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).” (Internal quotation marks omitted.) State v. Harris, 46 Conn. App. 216, 242-43, 700 A.2d 1161, cert. denied, 243 Conn. 930, 701 A.2d 662 (1997).

       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.”


author: FREEDMAN, J.

text:
    KENNETH JONES ET AL. v. ALLAN A. CRYSTAL, COMMISSIONER OF REVENUE SERVICES
    (AC 15799)
    Foti, Freedman and Stoughton, Js.
    Argued November 12, 1997
    officially released February 17, 1998

      Jonathon L. Ensign, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant).

      Robert J. Percy, for the appellees (plaintiffs).
   Opinion

FREEDMAN, J.

In this tax appeal, the defendant commissioner of revenue services appeals from the decision of the trial court, remanding the action to the commissioner for further proceedings. The following facts are relevant to this appeal. The plaintiffs operate a business in Bridgeport known as Main Port Fish & Chips, a business that sells fish dishes, sandwiches, chowders, salads, desserts and beverages. Main Port has ten tables, capable of seating thirty-five persons. In addition, Main Port sells a substantial amount of take-out food. Both dining room and take-out customers place their orders from a one page menu at the counter, where a cashier registers the order.

The commissioner conducted a sales and use tax audit of Main Port for the period September 1, 1988, through August 31, 1991. On September 1, 1992, the commissioner issued an assessment against Main Port asserting a sales and use tax deficiency plus interest and a penalty. Main Port protested the assessment to the commissioner’s appellate division. On July 21,1993, the commissioner issued its final determination, concluding that the amount owed by Main Port was $42,378.75. Main Port appealed to the trial court, which reviewed Main Port’s claimed exemptions and remanded the case to the commissioner for further proceedings. The commissioner appealed from the trial court’s decision on the issues regarding Main Port’s claimed exemptions. We reverse the decision of the trial court in part.

I

The commissioner first argues that the trial court improperly construed the department of revenue services 1990 Bulletin No. 17 to find that sales of three or more pieces of fish and a pint of coleslaw are bulk sales of grocery food exempt from sales tax. To resolve this claim properly, we must examine the relevant statutes, regulations and bulletins. Before we do so, however, we must first note “the principles of statutory construction that govern the availability of a tax exemption. First, statutes that provide exemptions from taxation are a matter of legislative grace that must be strictly construed against the taxpayer. Second, any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Third, the taxpayer must bear the burden of proving the error in an adverse assessment concerning an exemption.” Plastic Tooling Aids Laboratory, Inc. v. Commissioner of Revenue Services, 213 Conn. 365, 369, 567 A.2d 1218 (1990). Furthermore, “[i]t is axiomatic that a statute, even one providing for a tax exemption, should not be construed to effectuate a bizarre or irrational result.” Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 621, 674 A.2d 805 (1996).

In Connecticut, sales tax is imposed on the sale of all tangible personal property unless specifically exempted. See General Statutes §§ 12-407 (2) (a) and 12-408. General Statutes § 12-412 (13) specifically provides an exemption for “[sjales of food products for human consumption.” The definition of “food products” within this statute is very broad. The statute provides, however, that “ ‘[f]ood products’ ... do not include meals sold by an eating establishment or caterer.” The statute further provides that “ ‘[m]eaT means food products which are furnished, prepared or served in such a form and in such portions that they are ready for immediate consumption. A meal . . . includes food products which are sold on a ‘take out’ or ‘to go’ basis and which are actually packaged or wrapped.” Thus, pursuant to this statute, food products are exempt from the sales tax unless they constitute meals, which are not exempt.

We turn next to § 12-426-29 of the Regulations of Connecticut State Agencies, titled, “Exemption of food products for human consumption; Taxability of meals sold by eating establishments or caterers.” This regulation states that its purpose “is to clarify what is covered by that exemption.” Section 12-426-29 (c) (1) defines “meals” as “food products for human consumption sold in such form and such portions that they are ready for immediate consumption and are of a type normally consumed on or near the location of the seller.” This regulation distinguishes “bulk sales” and “meals,” stating in pertinent part that “ ‘[m]eals’ do not include bulk sales of food products unless meant for consumption on or near the location of the seller. Examples of such bulk sales include the sale of ice cream in one-half gallon containers, whole pies, cold sliced meat sold by the pound and cold salads sold by the pound. Examples of sales which are not bulk sales include the sale of whole pizza pies and buckets of fried chicken.”

To further clarify the taxability of meals, the department of revenue services promulgated Bulletin No. 17. Unfortunately, Bulletin No. 17 was revised during the audit period in question, so that different versions apply to the present case at different times. As previously noted, the commissioner conducted a sales and use tax audit of Main Port for the period September 1, 1988, through August 31, 1991. The first version of Bulletin No. 17 (version I) was issued in August, 1987, prior to the commencement of the audit period. In May, 1990, the department of revenue services revised Bulletin No. 17 and, therefore, the revised version (version II) applies during the latter portion of the audit period.

Version I of Bulletin No. 17 provides in part that “[m]eals consist of food products ordinarily sold in such form and portions that they are ready for immediate consumption on or near the location of the seller. A meal may be a full dinner or it may be limited to a single item. . . . Meals costing $2.00 or more are subject to tax whether they are served at the location of the seller or are sold as a ‘take-out’ order.” Version I further provides that “[t]he sale of food items in bulk would not generally be considered the sale of a meal. Examples of exempt bulk food sales would include the sale of a half gallon of ice cream at an ice cream shop or a box of a dozen donuts at a coffee and donut shop. However, the sale of a, hot pizza by a pizzeria or the sale of a large container of hot fried chicken or fish pieces by a restaurant is considered the sale of a meal and is subject to tax, if it costs $2 or more." (Emphasis added.) The trial court, interpreting version I of Bulletin No. 17, concluded that the sale of a large order of fish, as well as a fish “platter” and a serving of five stuffed clams were meals subject to the sales tax. The trial court reached the same conclusion under version I with regard to pints of chowder, pints of coleslaw and large orders of fries. The commissioner does not challenge these conclusions.

The trial court, however, further concluded that under version II of Bulletin No. 17, sales of three pieces of fish or more and pints of coleslaw are bulk sales and are, therefore, exempt from the sales tax. The commissioner challenges that holding.

Version II of Bulletin No. 17 provides in part that “[t]he sale of food items in bulk is not generally considered the sale of a meal. Exempt bulk food items are those items sold in such form or in portions which are larger than those which are ordinarily considered for immediate consumption. For example, whole cooked chickens, racks of cooked ribs, whole loaves of bread, and whole cakes or pies are considered bulk food purchases and are, therefore, not taxable.” Version II then goes on to list examples of taxable meals. The specific reference to fish pieces as a taxable meal that was present in version I was deleted in version II. The trial court placed great reliance on that omission in concluding that three or more fish pieces are bulk sales exempt from the sales tax under version II.

The commissioner argues, however, and we agree, that the omission of fish pieces in version II is not significant in that the language immediately preceding the list states that “[ejxamples of food for immediate consumption include, but a,re not limited to, the following . . . The question to be resolved in determining whether the sales tax applies is whether pieces of fish are more like bulk food, such as whole loaves of bread and whole cakes or pies, or meals, such as pizza and cooked chicken sold by the piece, including buckets of chicken. If it were otherwise, any particular item of food that is not included on the list of examples of taxable meals would automatically be considered a tax exempt bulk sale. Such a construction would “effectuate a bizarre or irrational result.” Rich-Taubman Associates v. Commissioner of Revenue Services, supra, 236 Conn. 621.

We conclude that fish pieces are similar to pieces or buckets of chicken and, therefore, constitute meals subject to the sales tax.

The commissioner next challenges the trial court’s conclusion that the sale of a pint of coleslaw is a bulk sale exempt from the sales tax under version II. We agree with the commissioner.

According to § 12-426-29 (c) (1) of the Regulations of Connecticut State Agencies, “[m]eals do not include bulk sales of food products unless meant for consumption on or near the location of the seller. Examples of such bulk sales include the sale of . . . cold salads sold by the pound.” (Emphasis added.) Version II of Bulletin No. 17 provides in part that “[sjalads sold in containers of less than one-half pound” are taxable meals. The trial court held that it is “likely that a pint of coleslaw weighs more than one-half pound. A pint of coleslaw is, consequently, a ‘bulk sale.’ ”

We initially note that coleslaw is “a salad made of raw sliced or chopped cabbage.” (Emphasis added.) Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). We further note that Main Port does not sell coleslaw by weight. A review of Main Port’s menu reveals that coleslaw is sold in individual portions and by the pint. In order for coleslaw to be considered a bulk food under the applicable regulation and version II of Bulletin No. 17, it would have to be sold in containers of greater than one-half pound. Because Main Port does not sell coleslaw by weight, we conclude that the trial court incorrectly concluded that the sale of a pint of coleslaw is a bulk sale.

II

The commissioner next argues that the trial court improperly considered individual food items in a single transaction to be meals under $2 and, therefore, exempt from sales tax under General Statutes § 12-412 (51). We agree. Section 12-412 (51) was repealed in 1989. See Public Acts 1989, No. 89-251, § 202. It was in effect, however, at the beginning of the audit period.

General Statutes (Rev. to 1987) § 12-412 (51) provided an exemption for “[t]he sale of any meal, as defined in subsection (13) of this section, for which the purchaser is charged a total of less than two dollars . ...” As previously stated, a meal is “food products which are furnished, prepared or served in such form and in such portions that they are ready for immediate consumption.” General Statutes § 12-412 (13). Main Port, in its application of this exemption, treated each individual item that it sold as a “meal.” The trial court properly described the issue as follows: “[T]o take one example, if a hypothetical customer ordered a cup of chowder, a small order of fries, and a stuffed clam, each of these items would be considered a ‘meal’ [by Main Port]. Suppose that the cost of each of these items was $1. In spite of the fact that the total cost of these items is $3, Main Port treated this purchase as a purchase of three ‘meals,’ each costing less than $2. The question presented is whether this treatment was appropriate.”

We again note that statutes that provide exemptions from taxation must be strictly construed against the taxpayer and that any ambiguity in the statutory formulation of an exemption must be resolved against the taxpayer. Plastic Tooling Aids Laboratory Inc. v. Commissioner, supra, 213 Conn. 369. Because § 12-412 (51) provides an exemption for meals under $2, any ambiguity must be resolved in favor of the commissioner.

With this principle in mind, we next consider that a meal is the portion of food taken at one time to satisfy appetite. Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993). Neither this definition nor the definition in § 12-412 (13) provides that each individual item is a separate meal for purposes of the $2 exemption. We therefore disagree with the trial court’s conclusion that “[a]ny particular item—whether it be an order of fries, a stuffed clam, or a piece of fish—sold by Main Port plainly qualifies as a ‘meal’ under [the definition in § 12-412 (13)]. If a customer orders three such items, it is consistent with the statute to treat such a purchase as a purchase of three ‘meals.’ ” We conclude, rather, that a meal for purposes of § 12-412 (51) consists of the total number of items of food charged to a person or persons at one given time. Such a construction is consistent with both the statutory and dictionary definitions of a meal.

Ill

Finally, the commissioner challenges the trial court’s interpretation of the exemption in General Statutes § 12-412 (9) regarding sales to patients in nursing homes. The commissioner argues that to qualify for the exemption in § 12-412 (9), Main Port must show that the meal was served and sold in a hospital, home for the aged, convalescent home, nursing home or rest home to a patient pursuant to an arrangement whereby Main Port ran the institution’s cafeteria or dining facility.

The commissioner, however, raises this issue for the first time on appeal. “Practice Book § 4061 provides that ‘[t]he court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial.’ This court follows the ‘[long-standing] rule that absent certain exceptional circumstances . . . claims not distinctly raised at trial will not be reviewed on appeal.’ Biggs v. Warden, 26 Conn. App. 52, 57, 597 A.2d 839, cert. denied, 221 Conn. 902, 600 A.2d 1029 (1991).” In re Michael A., 47 Conn. App. 105, 110, 703 A.2d 1146 (1997). We therefore decline to review this claim.

The judgment is reversed in part and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       This court previously dismissed the commissioner’s appeal and the plaintiffs’ cross appeal for lack of a final judgment. The commissioner filed a petition for certification to the Supreme Court. The Supreme Court reversed our judgment and remanded the case to this court to consider the commissioner’s appeal. Jones v. Crystal, 242 Conn. 599, 603, 699 A.2d 961 (1997). The Supreme Court further held, however, that because the plaintiffs did not file a petition for certification in the Supreme Court pursuant to Practice Book § 4126 or a cross petition for certification pursuant to Practice Book § 4129, the judgment dismissing the cross appeal was not affected by the remand. Id., 603-604. This opinion, therefore, will address only the issues raised in the commissioner’s appeal.

       The plaintiffs are Kenneth Jones, Edward Jones and David Jones, doing business as Main Port Fish & Chips. Hereinafter, the plaintiffs will be referred to as Main Port.

       In addition to its conclusions regarding Main Port’s claimed exemptions, the trial court also found that the commissioner’s auditors did not consult Main Port’s cash register tapes, and that Main Port did not produce the tapes until the field stage of the audit had been completed. The trial court further found no evidence that Main Port withheld the tapes in bad faith. The trial court, therefore, remanded the case to the commissioner for a redetermination of Main Port’s sales tax liability based on all of the available evidence, including the now available tapes. The commissioner does not challenge that portion of the trial court’s decision.

       General Statutes § 12-412 (13) provides: “Sales of food products for human, consumption. ‘Food products’ include cereals and cereal products, milk and milk products, oleomargarine, meat and meat products, fish and fish products, eggs and egg products, vegetables and vegetable products, fruit and fruit products, spices and salt, sugar and sugar products other than candy and confectionery; coffee and coffee substitutes, tea, cocoa and cocoa products other than candy and confectionery. ‘Food products’ do not include spirituous, malt or vinous liquors, soft drinks, sodas or beverages such as are ordinarily dispensed at bars and soda fountains, or in connection therewith, medicines except by prescription, tonics and preparations in liquid, powdered, granular, tablet, capsule, lozenge and pill form sold as dietary supplements or adjuncts. ‘Food,products’ also do not include meals sold by an eating establishment or caterer. ‘Meal’ means food products which are furnished, prepared or served in such a form and in such portions that they are ready for immediate consumption. A meal as defined in this subsection includes food, products which are sold on a ‘take out’ or ‘to go’ basis and which are actually packaged or wrapped. The sale of a meal, a,s defined in this subsection, is a, taxable sale. ‘Eating establishment’ means a place where meals are sold and includes a restaurant, cafeteria, grinder shop, pizzeria, drive-in, fast food outlet, ice cream truck, hot dog cart, refreshment stand, sandwich shop, private or social club, cocktail lounge, tavern, diner, snack bar, or hotel or boarding house which furnishes both lodging and meals to its guests.” (Emphasis added.)

       Version II of Bulletin No. 17 provides in pertinent part:
      “(5) Examples of Taxable Meals

      Examples of food for immediate consumption include, but are not limited to, the following:
      - Coffee or tea (ready to consume - hot or iced)
      - Sandwiches and grinders
      - Popsicles, ice cream cones, cups, sundaes, and other individual servings of frozen desserts unless sold in factory prepackaged multi-unit packs
      - Ice cream, frozen yogurt, and other frozen desserts sold in containers of less than one pint
      - Yogurt sold in containers 8 oz. or less unless sold in factory prepackaged multi-unit packs
      - Fountain drinks, shakes, syrup flavored crushed ice drinks
      - Bottled or canned fruit juices and drinks, containers of milk, non-carbonated mineral or spring water sold in containers 12 oz. or less unless sold in factory prepackaged multi-unit packs
      - Salads sold at salad bars
      - Salads sold in containers of less than one-half pound
      - Donuts, muffins, rolls, bagels, pastries (5 or fewer)
      - Cookies (sold 5 or fewer or sold less than one-half pound)
      - Pies or cakes by the slice
      - Bags or packages of chips, popcorn, nuts, trail mix, crackers, cookies, snack cakes, or other snack foods sold 5 oz. or less
      - Single pieces of fruit
      - Pizza sold whole or sliced
      - Cooked chicken sold by the piece, including ‘buckets’ of chicken

       Items sold in quantities or portions which are larger than those noted above are considered to be bulk sales and, therefore, are not generally considered to be taxable as meals.”

       Specifically, the trial court stated in part that “because ‘fish pieces’ are no longer specifically treated in version II, they must be dealt with by more general principles. . . . The most helpful general principle appears to be that of the last sentence. Quantities or portions larger than those specifically itemized are considered to be bulk sales.”

       In reaching this conclusion, the trial court relied on “the ancient maxim that a pint’s a pound the world round.” We decline to accept this maxim as persuasive authority.

       The trial court further found that a pint of chowder, a large order of fries and five stuffed clams are meals under version II. This finding has not been challenged on appeal.

       General Statutes (Rev. to 1987) § 12-412 (51) provides an exemption for “[t]he sale of any meal, as defined in subsection (13) of this section, for which the purchaser is charged a total of less than two dollars. The exemption provided herein shall apply to the total charge for each such meal separately computed. The gross receipts from all such meals costing less than two dollars shall be exempt from the tax imposed by this chapter, provided the retailer claiming such exemption shall maintain adequate records to support the same. If records are not adequate for purposes of such exemption, as determined by the commissioner of revenue services, such gross receipts shall be subject to tax under this chapter.”

       As previously noted, General Statutes § 12-412 (51) was repealed in 1989. Prior to the repeal of § 12-412 (51), the definition of “meal” in General Statutes § 12-412 (13) contained certain references to § 12-412 (51). These references were also deleted in 1989. See Public Acts 1989, No. 89-251, § 13. The definition of “meal” contained in General Statutes (Rev. to 1987), § 12-412 (13), as amended by Public Acts 1987, No. 87-177, provided: “ ‘Meal” means food products which are furnished, prepared or served in such a form and in such portions that they are ready for immediate consumption, provided any meal exempt from tax in accordance with subsection (51) of this section may include any nonalcoholic beverage which is not a food product, as that term is defined in this subsection, if such meal includes food products in addition to such nonalcoholic beverage. A meal as defined in this subsection includes food products which are sold on a ‘take out’ or ‘to go’ basis and which are actually packaged or wrapped. The sale of a meal as defined in this subsection, subject to the exemption allowed under said subsection (51) of this section, is a taxable sale.”

       General Statutes (Rev. to 1991) § 12-412 (9), titled, “Educational institution and certain health and care facility meals,” provides an exemption from the sales tax for “[s]ales of food products and meals in a student cafeteria, dining-hall, dormitory, fraternity or sorority maintained in a private, public or parochial school, college or university, to members of such institutions or organizations and sales of food products and meals to patients in hospitals, homes for the aged, convalescent homes, nursing homes and rest homes.”

       The commissioner did argue in the trial court that he properly disallowed Main Port’s claimed exemptions pursuant to General Statutes § 12-412 (9). The commissioner argued, however, that the exemption turned on the interpretation of the word “patient.” This is not the same claim made by the commissioner on appeal.


author: O’CONNELL, C. J.

text:
    STATE OF CONNECTICUT v. CLARENCE GLENN
    (AC 16519)
    O’Connell, C. J., and Schaller and Shea, Js.
    Argued December 9, 1997
    officially released February 17, 1998

      Theresa M. Dalton, assistant public defender, with whom, on the brief, was Sharon Elias, assistant public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Eva Lenczewski, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, following a conditional plea of nolo contendere, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278. The defendant claims that the trial court improperly denied his motion to suppress evidence, including his request for a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). We affirm the judgment of the trial court.

In response to a warrant application filed by Waterbury police, a search warrant was issued for the defendant’s residence, a second floor apartment at 44 Burton Street. In the affidavit supporting the warrant application, the affiants, two police officers, alleged that they had probable cause to believe that there were narcotics at that location. A search warrant was issued by a judge of the Superior Court and executed by the police. During the search, the officers seized narcotics, money and drug paraphernalia. The officers arrested the defendant, who subsequently filed a motion to suppress the seized evidence, which motion included a request for a Franks hearing. When the trial court denied that motion, the defendant entered a conditional plea of nolo contendere, pursuant to General Statutes § 54-94a and Practice Book § 4003, to an information charging him with possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (a).

I

The defendant’s claim is based on subfacial challenges to the veracity and integrity of the affidavit supporting the search warrant. The United States Supreme Court has established that the fourth and fourteenth amendments to the United States constitution confer on a criminal defendant the right to challenge the veracity of factual statements made in an affidavit supporting a warrant. Franks v. Delaware, supra, 438 U.S. 172.

“ ‘[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.’ ” State v. Stepney, 191 Conn. 233, 237-38, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The defendant has the difficult burden of making a substantial preliminary showing that the factual assertions in the supporting affidavit were known to be false or were made with reckless disregard for the truth. Franks v. Delaware, supra, 438 U.S. 171; State v. Telesca, 199 Conn. 591, 606, 508 A.2d 1367 (1986). To qualify for a Franks hearing, the defendant’s attack must be more than conclusory. Franks v. Delaware, supra, 171. Allegations of deliberate falsehood or of reckless disregard for the truth must be accompanied by an offer of proof. Id.

The defendant targets paragraphs two and three of the warrant affidavit. His offer of proof raises an alibi defense that he was out of town during the events set forth in those paragraphs. He claims, therefore, that the allegations in those paragraphs are false. The defendant’s argument is flawed as to both paragraphs.

Paragraph two states that “an investigation was initiated on a black male known as Clarence Glenn at the rear of 44 Burton St., 2nd floor garage apartment . . . based upon information received that crack cocaine was being sold from that location . . . [and] during the past few days the affiants conducted several surveillances on said location . . . [and] observed several known narcotics abusers enter said location and leave after a brief period of time. . . .” The defendant maintains that this information was false because he was out of town during this surveillance. The affiants do not state, however, that they personally obseived the defendant at his residence during the surveillance. Thus, the defendant has failed to show that the affiants included false statements in paragraph two of the affidavit.

Furthermore, even without paragraph two of the affidavit, paragraph three alone is sufficient to support a finding of probable cause and a denial of the defendant’s request for a Franks hearing. Franks v. Delaware, supra, 438 U.S. 171-72; State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990).

Paragraph three of the affidavit asserts that “within the past few days, the affiants met with a known, confidential and reliable informant . . . [who] agreed to make a controlled narcotics buy from a black male known as Clarence Glenn at the rear of Burton St., 2nd floor garage apartment. . . . The informant was dropped off and . . . was observed walking directly to the rear of 44 Burton St., garage apartment. . . . The informant . . . returned directly back to the affiants [and] . . . turned over ... a quantity of a white rock-like substance. Said informant stated that the . . . substance was purchased from a black male known as Clarence Glenn at the rear of 44 Burton St., 2nd floor garage apartment. . . . The quantity of white rock-like substance did show a positive reaction for cocaine.”

The defendant again maintains that this information is false because he was out of town when these events allegedly took place. Even if the defendant was able to prove this alibi, the only part of paragraph three that it falsifies is the informant’s identification of the person who sold the drugs to the informant. The officers did not witness the controlled buy, but relied on the information provided by a reliable informant they observed entering the defendant’s residence with cash and leaving the defendant’s residence with cocaine. Even assuming that the informant was lying, the defendant has not made a showing that the officers knew or had reason to believe that the informant was lying. Such a showing is required in order to obtain a Franks hearing. State v. Morrill, 205 Conn. 560, 571, 534 A.2d 1165 (1987).

The deliberate falsity or reckless disregard for the truth that warrants impeachment under Franks is only that of the affiant, not of any nongovernmental informant. Franks v. Delaware, supra, 438 U.S. 171; State v. Morrill, supra, 205 Conn. 569. Thus, the defendant has failed to show that the affiants intentionally, knowingly or with reckless disregard for the truth made false statements in paragraph three of the search warrant affidavit.

The defendant further contends that the affiants intentionally omitted material information regarding “the unique physical setup of the location under surveillance.” Material omissions from a warrant affidavit fall within the Franks rule. State v. Bergin, supra, 214 Conn. 666. The defendant seems to be claiming that the affiants could not have observed anyone entering and leaving the address in question because their view was obstructed. This allegation is merely conclusory and therefore fails to mandate an evidentiary hearing. See Franks v. Delaware, supra, 438 U.S. 171; State v. Morrill, supra, 205 Conn. 569-70. The defendant submitted no “[affidavits or sworn or otherwise reliable statements” to support this allegation. Franks v. Delaware, supra, 171. Thus, the defendant failed to provide an offer of proof of a material omission sufficient to establish his right to a Franks hearing. Id.

We conclude that the trial court properly denied the defendant’s claim under the fourth and fourteenth amendments to the United States constitution.

II

In the event that his argument under the United States constitution fails, the defendant urges us to reject a Franks analysis and to adopt a stricter standard under the Connecticut constitution. He asks us to hold that under article first, § 7, of our state constitution, there is no need for the defendant to make a showing of either intentional dishonesty or reckless disregard for the truth by the affiant. Rather, the defendant contends that to be granted a hearing, he need show only that an informant gave materially false information to the affiants. We are not persuaded.

In the analysis of issues arising for the first time under our state constitution, our Supreme Corut has identified six factors to be considered: (1) the text of the constitutional provision; (2) related Connecticut precedents; (3) federal precedents; (4) precedents of other state courts; (5) historical insights into the intent of our constitution; and (6) economic and sociological considerations. State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Areview of those factors fails to support the defendant’s argument.

Article first, § 7, of the constitution of Connecticut provides that “[t]he people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.” As our Supreme Court has noted, that provision is virtually identical to the fourth amendment to the United States constitution. Washington v. Meachum, 238 Conn. 692, 719, 680 A.2d 262 (1996). The requirement of an “oath or affirmation” is aimed at preventing the inclusion of false statements in an affidavit supporting a search warrant application. Nothing in the text of article first, § 7, indicates that more is required than that the affiant in good faith believes the information in the affidavit to be true.

The relevant federal precedent, Franks v. Delaware, supra, 438 U.S. 171-72, as we have already discussed, holds contrary to the defendant’s position. Moreover, the majority of other states that have considered this issue have adopted Franks under their respective state constitutions. See, e.g., State v. Peightal, 122 Idaho 5, 7, 830 P.2d 516 (1992); Commonwealth v. Nine Hundred & Ninety-Two Dollars, 383 Mass. 764, 770-71, 422 N.E.2d 767 (1981); State v. Valenzuela, 130 N.H. 175, 190-91, 536 A.2d 1252 (1987), cert. denied, 485 U.S. 1008, 108 S. Ct. 1474, 99 L. Ed. 2d 703 (1988); People v. Bradley, 181 App. Div. 2d 316, 318, 586 N.Y.S.2d 119, appeal dismissed, 81 N.Y.2d 760, 610 N.E.2d 394, 594 N.Y.S.2d 721 (1992); Davis v. State, 859 P.2d 89, 93 (Wyo. 1993).

Connecticut precedent also fails to support the defendant’s argument. Prior to the Franks decision in 1978, Connecticut was one of eleven states that refused to allow a defendant to challenge the veracity of any information contained in a warrant affidavit. Franks. v. Delaware, supra, 438 U.S. 179-80; see State v. Williams, 170 Conn. 618, 368 A.2d 140, cert. denied, 429 U.S. 865, 97 S. Ct. 174, 50 L. Ed. 2d 145 (1976); State v. Williams, 169 Conn. 322, 326-27, 363 A.2d 72 (1975).

Connecticut case law subsequent to the Franks decision has not addressed the issue of whether Franks should be adopted under the state constitution. For the most part, the relevant cases simply apply the Franks analysis under the federal constitution. See, e.g., State v. Bergin, supra, 214 Conn. 666-73; State v. Ruscoe, 212 Conn. 223, 231-33, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Morrill, supra, 205 Conn. 569-72; see State v. Durepo, 37 Conn. Sup. 901, 903 n.2, 443 A.2d 493 (1982) (citing both fourth amendment and article first, § 7, of Connecticut constitution to support principles of Franks analysis).

With respect to historical insights into the intent of the state constitution, our Supreme Court has noted that there is “sparse preconstitutional and early constitutional history of article first, § 7 . . . .” State v. Barton, 219 Conn. 529, 538 n.4, 594 A.2d 917 (1991). The lack of historical guidance does not support the conclusion that our state constitution mandated stricter standards than the federal constitution. See id.

The final factor to consider is whether economic and sociological considerations indicate that a defendant should be allowed to challenge the veracity of statements made by an informant in a search warrant affidavit. The defendant argues that the veracity of informants should be subject to challenge in order to preserve the integrity of the warrant issuing process. We do not agree.

The Franks decision enables defendants to challenge the veracity of the affiants, who are generally police officers. Pursuant to Franks, if a defendant establishes that an affiant made a false statement, whether intentionally or with reckless disregard for the truth, that statement must be removed from the affidavit and cannot be considered in determining whether probable cause exists. State v. Stepney, supra, 191 Conn. 237-38. That sanction furthers a primary purpose of the exclusionary rule: deterrence of police misconduct. State v. Marsala, 216 Conn. 150, 170, 579 A.2d 58 (1990). By deterring police from including false statements in warrant affidavits, the Franks decision adequately safeguards the integrity of the warrant issuing process.

The rule suggested by the defendant is not only unnecessary, but would place an undue burden on police to spend time and resources verifying information that they have no reason to think is inaccurate. Such a rule would delay police investigations, facilitate the destruction of evidence and impede the apprehension of suspects. Finally, the defendant’s proposed rule would likely cause an increase in pretrial litigation, thereby placing an additional burden on an already overburdened criminal trial calendar. See State v. Anonymous (1973-6), 30 Conn. Sup. 211, 230, 309 A.2d 135 (1973).

Having considered the applicable factors, we conclude that the Franks analysis applies under our state constitution when a defendant challenges the veracity of statements made in a warrant affidavit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The fourth amendment to the United States constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


author: PER CURIAM.

text:
    ADRIAN D. KING v. COMMISSIONER OF CORRECTION
    (AC 16754)
    Landau, Schaller and Hennessy, Js.
    Argued January 23
    officially released February 17, 1998

      Michael A. Rubino, Jr., special public defender, for the appellant (petitioner).

      Ellen A. Jawitz, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

After a thorough review of the record and briefs, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal the dismissal of his habeas corpus petition was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. LARRY W. TINSLEY
    (AC 16992)
    O’Connell, C. J., and Lavery and Spear, Js.
    Argued December 11, 1997
    officially released February 17, 1998

      Donald Dakers, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was John F. Blawie, assistant state’s attorney, for the appellee (state).
   Opinion

O’CONNELL, C. J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k.

The defendant claims that (1) it was constitutionally impermissible to convict him of robbery in the first degree because there was insufficient evidence to establish that he was guilty of one of the two alleged alternative methods of committing the crime and (2) the trial court improperly denied his motion for a judgment of acquittal as to the violation of § 53-202k because there was insufficient evidence to establish possession of a firearm. We affirm the judgment in part and reverse it in part.

The jury reasonably could have found the following facts. On May 5, 1995, the victim was having trouble starting his car, which was parked on South Avenue in Bridgeport. He had raised the car’s hood and was attempting to remedy the problem when the defendant approached, stuck a handgun in his side and demanded money. The victim gave him $20, and the defendant walked away, still holding the gun in his hand. The victim subsequently made a photographic identification of the defendant and also an in-court identification at trial.

The defendant was charged, in a substitute information, with robbery in the first degree and with committing a class A, B or C felony with a firearm. He was convicted of both crimes.

I

The defendant first claims that it is constitutionally impermissible to convict him of robbery in the first degree when the information charged him with alternative methods of committing that crime and the state failed to prove one of the two alleged methods. The information on which the defendant was tried alleged in part that “the [defendant] stole certain property from [the victim], and in the course of the commission of the crime he displayed what he represented by his words or conduct to be a firearm.” (Emphasis added.)

The defendant concedes, and the evidence shows, that he represented by his conduct that he was armed with a pistol or a revolver. He argues, however, that the state must also prove that he represented by his words that he was so armed. The defendant did not raise this issue in the trial court and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). This claim is not of constitutional magnitude and, therefore, does not meet the second Golding prong.

State v. Chapman, 229 Conn. 529, 643 A.2d 1213 (1994), controls the resolution of this issue. In Chapman, our Supreme Court, relying on Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991), held that “a factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation.” State v. Chapman, supra, 539.

In the present case, the information charged the defendant with two alternative methods of committing robbery in the first degree. Consistent with the language contained therein, the trial court instructed the jury on robbery in the first degree, during the commission of which the defendant displayed what he represented by his words or conduct to be a firearm. As in Chapman, the instruction at issue in this case was based on a legally adequate theory of liability. There was insufficient evidence, however, to convict the defendant on the theory that he represented “by his words” that he possessed a gun. Because the instruction was of a factual nature, the jury was “well equipped to analyze the evidence” and also to determine whether the defendant’s representation that he had a gun was made by his words or by his conduct. (Internal quotation marks omitted.) Id., 539. We therefore conclude that the defendant’s claim is not of constitutional magnitude and, thus, decline to review this claim. State v. Golding, supra, 213 Conn. 239-40.

II

The defendant next claims that the trial court improperly denied his motion for judgment of acquittal on the charge of violating § 53-202k because the evidence failed to establish that the defendant “use[d] or was armed with” a “firearm.”

As a preliminary procedural matter, it must be noted that, subsequent to the sentencing in this case, our Supreme Court decided State v. Dash, 242 Conn. 143, 698 A.2d 297 (1997), which applies retroactively to the date of trial in this case. Dash held that § 53-202k is a sentence enhancement provision and not a separate crime. Id., 150. A defendant is permitted to file a motion for judgment of acquittal only for crimes for which he has been on trial. Because § 53-202k is not a separate crime, a motion for judgment of acquittal was not appropriate here.

During oral argument, defense counsel agreed that § 53-202k is not a separate crime, but argued that even under Dash, § 53-202k cannot enhance the sentence imposed for the robbery conviction because the state failed to establish that the defendant used or was armed with a firearm. The defendant contends that § 53-202k requires that the state not only prove that the defendant represented by his conduct that he possessed a firearm, but also that he used or was armed with one.

The relevant portion of § 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 . . . 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.” Section 53a-3 (19) defines a “firearm” as “any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded from which a shot may be discharged.” The defendant argues that the phrase in § 53-202k, “and threatens the use of, or displays, or represents by his words or conduct that he possesses” a firearm, comprises a second set of elements, one of which the state must prove in addition to proving that the defendant “use[d] or was armed with” said firearm. We disagree.

To be convicted of violating § 53-202k, the defendant must first have been convicted of a class A, B or C felony and either (1) have used a firearm, or (2) have been armed with and threatened to use a firearm, or (3) have displayed a firearm, or (4) have represented by his words or conduct that he possessed a firearm. Contrary to the defendant’s contention, the phrase “is armed with” is not the beginning of a second set of elements to be proven. Such an interpretation would be illogical.

The defendant also claims that § 53-202k applies only after it is established that in the commission of the underlying felony for which the defendant was convicted, the weapon used was proven capable of discharging a shot. It has already been established that “a guilty verdict under § 53a-134 (a) (4) does not require proof of operability [of the gun]. A conviction can result whether [or not] the defendant possessed a gun. All that is required is that the defendant ‘displays or threatens the use of what he represents by his words or conduct to be a [gun].’ ” State v. Bradley, 39 Conn. App. 82, 93 n.10, 663 A.2d 1100 (1995), cert. denied, 236 Conn. 901, 670 A.2d 322 (1996). To conclude otherwise would render this statutory provision inapplicable in situations where weapons cannot be recovered or where a defendant represents to have a gun but, in fact, does not. Certainly, the legislature did not intend to omit those frequently occurring scenarios from sentence enhancement.

The state proved beyond a reasonable doubt that the defendant represented by his conduct that he possessed a firearm during the commission of the robbery. We conclude that this is sufficient for § 53-202k to apply.

Ill

The defendant was sentenced as follows: Robbery in the first degree—seventeen years; commission of an A, B or C felony with a firearm—five years with the sentences to run consecutively for a total effective sentence of twenty-two years. Accordingly, although the total effective sentence in this case was proper, it must be modified to reflect that § 53-202k was not a separate offense. See State v. Dash, supra, 242 Conn. 150; State v. Carter, 47 Conn. App. 632, 649, 708 A.2d 213 (1998).

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction of committing an A, B or C felony with a firearm pursuant to § 53-202k and to resentence the defendant for the robbery in the first degree conviction to a total effective term of imprisonment of twenty-two years in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he . . . (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . . .”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or 0 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 . . . 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.”

       Under the Golding guidelines, a defendant can prevail on a constitutional claim, not preserved at trial, only if all of the following conditions are met: “(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. ” State v. Golding, supra, 213 Conn. 239-40. If any one of these conditions is missing, the defendant’s claim will fail. C. Tait, Connecticut Appellate Practice and Procedure (2d Ed. 1993) § 7.10 (b), p. 7-30.