text:
    RICHARD C. MACDONALD v. ROBERT PINTO
    (AC 19669)
    Zarella, Dranginis and Hennessy, Js.
    Argued December 7, 2000
    officially released March 13, 2001

      Otto P. Witt, for the appellant (plaintiff).

      Edward B. Bradley, with whom, on the brief, were Robert A. Ziegler and Leslee B. Hill, for the appellee (defendant).
   Opinion

ZARELLA, J.

The plaintiff, Richard C. MacDonald, appeals from the judgment of the trial court in favor of the defendant, Robert Pinto, in this breach of contract action. On appeal, the plaintiff claims that the court improperly (1) found that he failed to prove the existence of an oral contract for employment, a breach of that contract and damages, and (2) failed to determine the credibility of the witnesses. Because we determine that the court’s findings of fact are contrary to the admissions of the defendant, we reverse the judgment and remand the case for a new trial.

The court, in its memorandum of decision, found the following relevant facts. The defendant hired the plaintiff and Steve Bilan as independent contractors in March, 1992. The parties orally agreed on the plaintiffs terms of employment. On March 30, 1995, the plaintiff terminated his employment with the defendant. Shortly thereafter, “[t]he defendant notified the plaintiff through his attorney that [pursuant to their agreement, the plaintiff] was entitled to $9,602.17, which represented 25 percent of the difference between the accounts receivable and the accounts payable as of March 30,1995.” The plaintiff disagreed and “demanded to be paid 25 percent of the accounts payable less the cost of materials, tooling and outside processing for each of the years he was an employee of the defendant.”

The court concluded that the plaintiff failed to sustain his burden of proving the existence of the oral contract, “pursuant to which the plaintiff would be paid, on a weekly basis, one quarter of the payables, less the cost of materials, tooling and outside processing.” The court further found that the facts adduced at trial did not “provide a basis for a determination of damages.”

“As an appellate court, our review of trial court decisions is limited to determining whether their legal conclusions are legally and logically correct, supported by facts set out in the memorandum of decision. . . . Whether a contract . . . exists is a question of fact for the court to determine. ... If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Citations omitted; internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 605-606, 749 A.2d 1219, cert, denied, 254 Conn. 903, 755 A.2d 881 (2000). “A court’s determination is clearly erroneous only in cases in which the record contains no evidence to support it, or in cases in which there is evidence, but the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Emphasis in original.) W. v. W., 248 Conn. 487, 495, 728 A.2d 1076 (1999).

In the first count of a two count revised complaint dated April 18,1997, the plaintiff alleged, inter alia, that he and the defendant had an oral contract under which the “plaintiff was to be paid 25 percent of the amount invoiced by Pinto Associates [the entity under which the defendant was doing business] after deducting the cost of materials, tooling and outside processing.” The plaintiff further alleged that after he terminated his employment, the defendant acknowledged that he owed the plaintiff money, but that the defendant misstated the terms of their contract. Consequently, the plaintiff alleged, the defendant breached the contract because he refused to pay the plaintiff in accordance with the terms of the contract. In the second count, the plaintiff alleged, inter alia, that the “[defendant entered into an oral contract with [the] plaintiff and other workers whereby they would be treated as independent contractors and entitled to a share of the income of the company.”

The defendant filed his answer to the revised complaint on September 2, 1997. He admitted that the parties had an oral contract governing the plaintiffs employment. The defendant also admitted that under the contract, the plaintiff was entitled to a share of the income of Pinto Associates. Furthermore, the defendant, whom the plaintiff called as a witness at trial, repeatedly admitted the existence of an oral contract for employment.

“An admission in a defendant’s answer to an allegation in a complaint is binding as a judicial admission. Lutkus v. Kelly, 170 Conn. 252, 257, 365 A.2d 816 (1976). An admission in pleading dispenses with proof, and is equivalent to proof. Connecticut Hospital for the Insane v. Brookfield, 69 Conn. 1, 4, 36 A. 1017 (1897). It is the full equivalent of uncontradicted proof of these facts by credible witnesses; Cassidy v. Southbury, 85 Conn. 221, 223, 82 A. 198 (1912); and is conclusive on the pleader. Rodearmel v. Rodearmel, 173 Conn. 273, 275, 377 A.2d 260 (1977); Cross v. Hudon, 42 Conn. App. 59, 65, 677 A.2d 1385, cert, denied, 239 Conn. 932, 683 A.2d 400 (1996).” (Internal quotation marks omitted.) Days Inn of America, Inc. v. 161 Hotel Group, Inc., 55 Conn. App. 118, 126-27, 739 A.2d 280 (1999). In the present case, the plaintiff did not have to prove the existence of an oral contract because the defendant repeatedly admitted to its existence in his answer and at trial. The court therefore improperly determined that the plaintiff did not meet his burden of proving the existence of the oral contract.

The pleadings and the parties’ testimony establish that at the time the parties formed the oral contract, there was a meeting of the minds. See Hirschfeld v. Hirschfeld, 50 Conn. App. 280, 287, 719 A.2d 41, cert, denied, 247 Conn. 929, 719 A.2d 1168 (1998). Only now, subsequent to contract formation, do the parties’ recollections regarding the terms of their contract differ. Therefore, on remand, the court must assess the credibility of the witnesses in determining the terms of the parties’ contractual commitments. See Presidential Capital Corp. v. Reale, 231 Conn. 500, 507, 652 A.2d 489 (1994) (terms of contractual commitment ultimately are questions of fact).

We further conclude that the court improperly determined that the facts adduced at trial do not provide a basis for determining damages. The defendant admitted in his answer that he owes the plaintiff moneys pursuant to their oral contract. See Isaac v. Truck Service, Inc., 52 Conn. App. 545, 550, 727 A.2d 755 (1999) (admission of truth of allegation in pleading is judicial admission conclusive on pleader), aff d, 253 Conn. 416, 752 A.2d 509 (2000). The defendant testified at trial that the plaintiff is entitled to $9602.17, a figure reflecting 25 percent of the difference between accounts receivable and payable at the time the plaintiff terminated their employment relationship. The plaintiff, on the other hand, testified that pursuant to their contract, the defendant owes him at least $100,000, a figure representing 25 percent of all invoices less the cost of materials, tooling and outside processing for each of the years that the defendant employed him. On remand, therefore, the court also must determine the amount of damages to which the plaintiff is entitled.

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

In this opinion the other judges concurred.

       Pinto conducts business under the name Pinto Associates.

       Bilan, who remains employed by the defendant, is not a party to this action.

       Notwithstanding the court’s finding, our review of the trial transcript reveals that the plaintiff testified that pursuant to the parties’ oral contract, he was entitled to 25 percent of the revenue from all invoices less the cost of tooling materials and outside processes. The plaintiffs testimony was consistent with the allegations in his revised complaint, in which he alleged that he was entitled to 25 percent “of the amount invoiced, by Pinto Associates after deducting the costs of materials, tooling and outside processing.” (Emphasis added.) The plaintiffs counsel estimated that the defendant owes the plaintiff $83,548.
      Our review of the record has failed to reveal any evidence that the plaintiff demanded from the defendant 25 percent of accounts payable less miscellaneous deductions. We note that “[i]n its broadest usage the term ‘accounts payable’ includes virtually all unpaid bills of whatever nature, denoting the liabilities arising from the purchase of goods or services on credit. In the case law the term has been defined as the contract obligations owing by a person on open account.” (Internal quotation marks omitted.) General Hartford, Inc. v. Tax Commissioner, 178 Conn. 240, 241, 423 A.2d 869 (1979). In the absence of any evidence supporting the court’s finding, we conclude that this finding of fact is clearly erroneous.

       We note that the court concluded elsewhere in its memorandum of decision that “[t]he contract of employment was an oral contract.”

       See footnote 3.

       At trial, the defendant testified that the parties’ agreement required him to pay to the plaintiff 25 percent of accounts receivable less accounts payable on the termination of the plaintiffs employment or the business. The defendant’s testimony conformed to his earlier answers to the plaintiffs first set of interrogatories dated September 2, 1997. In his responses to interrogatories six and seven, the defendant stated, inter alia, that the terms and conditions of the contract between the defendant and the plaintiff were oral, and that the agreement contemplated that the plaintiff would be paid 25 percent of the difference between accounts receivable and payable as of the date of the plaintiffs termination.

       According to counsel for the plaintiff, the defendant owed the plaintiff approximately $83,548.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    LOOMIS AMSDEN v. RICHARD FISCHER
    (AC 19452)
    Schaller, Zarella and Peters, Js.
    Argued June 6, 2000
    officially released March 20, 2001

      Karen K. Clark, with whom, on the brief, was Maria S. Spalding, for the appellant (defendant).

      Neil Johnson, for the appellee (plaintiff).
   Opinion

SCHALLER, J.

The defendant, Richard Fischer, appeals from the judgment of the trial court in favor of the plaintiff, Loomis Amsden, rendered after a jury trial in this medical malpractice action. The defendant claims on appeal that the court improperly (1) excluded the testimony of his expert witness on the issue of causation, (2) refused to instruct the jury on intervening cause and (3) failed to direct a verdict in his favor or to set aside the jury’s verdict for the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. This action arose out of a surgical procedure that the defendant performed on the plaintiff to alleviate carpal tunnel entrapment on March 2, 1993. The plaintiff claimed that as a result of the procedure, he suffered median nerve damage in his right hand, resulting in permanent disability.

After postoperative treatment with the defendant, the plaintiff consulted Duffield Ashmead on November 23, 1993. Ashmead is a physician who specializes in reconstructive surgery and microsurgery. His examination of the plaintiffs symptoms, which included diminished sensation in the fingers and virtually no sensation in the thumb, led him to conclude that the plaintiffs median nerve had been damaged during his earlier carpal tunnel release surgery. Ashmead performed two separate reconstructive surgeries on the plaintiffs median nerve, which involved use of the plaintiffs healthy nerve to bridge a gap in the damaged median nerve. Ashmead rated the plaintiffs condition as 44 percent permanently impaired.

At trial, the plaintiff offered the testimony of his expert witness, Gerald Sava, a surgeon who performed no more than six carpal tunnel surgeries per year. Sava had difficulty discerning from the defendant’s surgical notes what the defendant had done. He testified that the numbness in the plaintiffs fingers and thumb indicated median nerve damage, and was not a risk associated with carpal tunnel release surgery. Sava further testified that the defendant breached the standard of care because an “injury with consequent significant deficit is an unacceptable consequence of surgery.”

The defendant offered the testimony of his expert witness, Richard Eaton, a physician who testified that the nerves appeared to be regenerating and showing signs of improvement following the defendant’s surgical procedure. Eaton stated that nerve damage is a risk of the surgery and that the defendant complied with good medical standards in caring for the plaintiff. Eaton concluded that the plaintiffs condition was not the result of the defendant’s surgery and agreed with the defendant’s approach.

On January 22, 1999, the plaintiff filed a motion in limine to exclude a portion of Eaton’s testimony in which he stated that the plaintiffs injuries were the result of Ashmead’s subsequent surgical procedures. The plaintiff asserted that the testimony was inadmissible because the defendant had not filed a special defense alleging a superseding cause of the injuries and that under the defendant’s general denial, the admission of the testimony would serve only to confuse the jury. The court granted the motion. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims first that the court improperly excluded the testimony of his expert witness on the issue of causation. We disagree.

“The decision to preclude a party from introducing expert testimony is within the discretion of the trial comt. Sturdivant v. Yale-New Haven Hospital, [2 Conn. App. 103, 107, 476 A.2d 1074 (1984)]. On appeal, that decision is subject only to the test of abuse of discretion. Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 405, 519 A.2d 95 (1986). The salient inquiry is whether the court could have reasonably concluded as it did. Sturdivantv. Yale-New Haven Hospital, supra, 108.” Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500-501, 602 A.2d 1040 (1992).

The defendant argues that the testimony of his expert was admissible to establish a set of facts inconsistent with the plaintiffs claim that he proximately caused the plaintiffs injuries. The trial court refused to admit the portion of Eaton’s testimony that purported to establish that the plaintiffs condition had improved through the physical therapy regimen under the defendant, but declined following the surgical procedures performed by Ashmead.

The defendant asserts that the argument is appropriately framed as the trial court’s failure to admit evidence tending to negate proof of causation under the standard set forth in Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 327 A.2d 583 (1973), rather than the application of the well-established rule that a negligent actor is responsible for all the foreseeable consequences of his negligence. See Wasfi v. Chaddha, 218 Conn. 200, 216, 588 A.2d 204 (1991). In the absence of impleading a third party based on a claim of negligence, the defendant cannot attempt to prove that another nonnegligent party is responsible. In Bradford v. Herzig, 33 Conn. App. 714, 724, 638 A. 2d 608, cert, denied, 229 Conn. 920, 642 A.2d 1212 (1994), this court stated that “[i]t is axiomatic that where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both. . . . The plaintiff had the right to choose either or both of two defendants to sue. If the defendant believed that a nonparty was responsible for some or all of the plaintiffs injuries, it was his responsibility to implead that nonparty.” (Citations omitted; internal quotation marks omitted.) Since the defendant makes no claim that negligence on the part of Ashmead was the cause of the plaintiffs condition, the defendant cannot attempt to reduce his own responsibility for the foreseeable consequences of his negligence. The trial court, accordingly, did not abuse its discretion in granting the motion in limine, thereby excluding evidence relating to a subsequent physician’s treatment.

Although the focus of the appeal extensively attacks the trial court’s decision as failure to admit evidence under the Pawlinski standard, we conclude that the court reached the proper decision, notwithstanding its basis for granting the motion as a failure to implead Ashmead or to plead a special defense. “We may affirm a trial court’s decision that reaches the right result, albeit for the wrong reason.” State v. Albert, 50 Conn. App. 715, 728, 719 A.2d 1183 (1998), affd, 252 Conn. 795, 750 A.2d 1037 (2000). We conclude, therefore, that the court did not abuse its discretion in granting the motion to exclude evidence of a subsequent physician’s treatment.

II

The defendant next claims that the court improperly refused to instruct the jury on intervening cause. We are not persuaded.

The court provided the following instruction to the jury: “If you find there exists different possibilities as to the cause of the plaintiffs injury, then you may find the evidence relative to the cause of the plaintiffs injury is too conjectural or uncertain to determine if the defendant’s actions were a substantial factor in causing it. If that is the case, you should find in favor of [the defendant].” The defendant contends that this instruction on causation was inadequate.

“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) Marshall v. O’Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert, denied, 252 Conn. 918, 744 A.2d 438 (2000).

As we stated in part I of this opinion, the court correctly excluded expert testimony placing Ashmead in the chain of causation. Therefore, the court’s subsequent refusal to instruct the jury on intervening causation was correct in law, adapted to the issues and sufficient for the jury’s guidance. See Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

Ill

The defendant’s final claim is that the court improperly failed to direct a verdict in his favor or to set aside the jury’s verdict for the plaintiff. The defendant argues that because the plaintiffs expert witness was not sufficiently familiar with the procedure to establish the requisite standard of care for a medical malpractice action, the defendant’s motion to direct or to set aside the verdict should have been granted. We disagree.

“Our review of a trial court’s decision denying a motion for a directed verdict, or refusing to set aside a verdict . . . requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. ... A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality. . . . [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.” (Citations omitted; internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 207-208, 680 A.2d 1243 (1996).

The defendant argues that the testimony of Sava, the plaintiffs expert witness, was inadequate to establish the applicable duty of care and the subsequent breach of that duty of care. It is unclear from the record whether there was an actual difference between the procedures for carpal tunnel release surgery used by Sava and the defendant or whether the defendant’s surgical notes were sufficiently vague to preclude a conclusion from Sava that the same or similar procedures were used.

Sava testified that “[m]y opinion is that the standard of care, the operative word is care, and that an injury with consequent significant deficit is an unacceptable consequence of the surgery.” His basis for that standard of care was that “the surgery, as I’ve described it, and that which is explained in detail in the literature, does not — is not one which has an appreciable index of risk. And it’s because of the anatomy of the region, and I think — not to sound reiterative, but I think I said initially, this is not a big deal operation. I mean this is fairly straightforward. It’s not exploratory. The goal is to decompress the median nerve with no harm to the median nerve, and anything beyond that — Now, I’m talking about the straightforward carpal tunnel syndrome.”

Sava concluded that the standard of care was breached because of the result; because of the “laceration which was demonstrated at the attempt at reconstruction, the formation of the neuroma, and the ultimate atrophic changes in the thenar eminence with the weakness attendant thereto”; and because “you have to have a high suspicion of a potential complication, injury.” When asked what he would have done if a patient complained of postoperative numbness, he replied that a physician with a high suspicion of median nerve injury would reexplore and that if the physician did not reexplore within forty-eight hours, then “you may as well forget it.”

“[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard.” (Internal quotation marks omitted.) Stowe v. McHugh, 46 Conn. App. 391, 397, 699 A.2d 279, cert, denied, 243 Conn. 932, 701 A.2d 662 (1997). “The fact that the plaintiffs operation was followed by an injuiy is not sufficient to establish negligence.” Mozzer v. Bush, 11 Conn. App. 434, 438 n.4, 527 A.2d 727 (1987).

The defendant relies on Mozzer and argues that the result in that case controls our decision. In Mozzer, the plaintiff claimed malpractice for personal injuries that she had allegedly sustained as a result of the negligence of two defendant physicians who purportedly had not properly positioned her right arm during gallbladder surgery, resulting in nerve damage to her arm. This court sustained the trial court’s granting of a directed verdict in favor of the defendants, finding that “the plaintiff [had] presented no evidence as to what occurred during the surgical procedure and completely failed to identify any specific act of negligence on the part of any person.” Id. In the present case, the plaintiff met his burden of proving what transpired during the surgical procedure performed by the defendant and the subsequent follow-up visits with the defendant. Mozzer is thus distinguishable from this case and does not control its outcome.

Reviewing the evidence in the construction most favorable to sustaining the verdict, the jury reasonably could have concluded that the standard of care for carpal tunnel surgery required no damage to the median nerve, and that the plaintiffs expert testimony interpreting the defendant’s surgical notes and the subsequent follow-up treatment supported the conclusion that the defendant had breached that standard of care and caused the plaintiffs injuries. Although the defendant’s expert testimony conflicted with that of the plaintiffs expert witness, “the jury is free to accept or reject each expert’s opinion in whole or in part.” (Internal quotation marks omitted.) Shelnitz v. Greenberg, 200 Conn. 58, 68, 509 A.2d 1023 (1986). On the basis of the foregoing, we conclude that the court properly denied the defendant’s motion for a directed verdict or to set aside the jury’s verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       “The distinction between matters which may be proved under a general denial and matters constituting special defenses, which must be specially pleaded, was enunciated in Pawlinski v. Allstate Ins. Co., [supra, 165 Conn. 1], where [the Supreme Court] observed . . . that ‘[t]he issues to be tried may be framed in several ways. A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact. ... If, however, a party seeks the admission of evidence which is consistent with a prima facie case, but nevertheless would tend to destroy the cause of action, the ‘new matter’ must be affirmatively pleaded as a special defense.’ ” (Citations omitted.) Bernier v. National Fence Co., 176 Conn. 622, 629, 410 A.2d 1007 (1979).

       An “injured plaintiff who has exercised reasonable care in the selection of a physician is not responsible for his unskillful treatment of the case, but may recover from him who is responsible for his primary injury, the damages accruing through an aggravation of the injury by the acts of the physician.” Wright v. Blakeslee, 102 Conn. 162, 167, 128 A. 113 (1925). “The test of good faith and reasonable conduct must be applied under all the conditions surrounding the plaintiff at the time.” Morro v. Brockett, 109 Conn. 87, 92-93,145 A. 659 (1929). The evidence proffered by the defendant concerning Ashmead’s subsequent treatment of the plaintiff in order to disprove causation by the defendant of the plaintiffs injuries did not relate to good faith or reasonableness on the part of the plaintiff in soliciting Ashmead’s services. As such, the “evidence was not relevant, and admission of it would serve only to confuse the jury with additional information.” State v. Guess, 44 Conn. App. 790, 811, 692 A.2d 849 (1997), aff d, 244 Conn. 761, 715 A.2d 643 (1998).

       The defendant requested that the jury instruction state in part that “[i]n order to prevail in a malpractice case, the plaintiff must establish by a preponderance of the evidence a causal connection between the alleged malpractice and the plaintiff’s injuries. In other words, if the plaintiff has failed to establish by the greater weight of the better evidence a causal connection between the alleged negligence of the defendant and the claimed injuries, then there can be no recovery for the plaintiff.”

         On direct examination of Sava, after describing the defendant’s notes from surgery on the plaintiff, Sava stated, “[w]ell, with all due respect, I had difficulty discerning exactly what was described here.”


author: MIHALAKOS, J.

text:
    SIGMUND FEUERMAN v. HARRIETTE FEUERMAN
    (AC 18850)
    Lavery, C. J., and Schaller and Mihalakos, Js.

      Submitted on briefs March 2, 2000
    officially released March 20, 2001

      Daniel J. Mahaney filed a brief for the appellant (plaintiff).

      Sandra P. Lax filed a brief for the appellee (defendant).
   Opinion,

MIHALAKOS, J.

The plaintiff, Sigmund Feuerman, appeals from the judgment of the trial court granting the defendant’s motion to dismiss the plaintiffs four count complaint against her. The plaintiff in this civil action seeks to enforce the provisions of a separation agreement that the court had incorporated by reference into the judgment dissolving the parties’ marriage.

The trial court found the following facts. The plaintiff and the defendant were married on November 3, 1957. A dissolution proceeding was commenced in 1991, and on November 7, 1994, the parties signed a separation agreement, which the court accepted and incorporated by reference into the judgment dissolving the marriage. On March 5,1995, the court, by agreement of the parties, extended the time for payment under paragraph 5.1 (a), from March 7, 1995, to March 31, 1995. The parties agreed to a further extension on March 13, 1995. The defendant again appeared before the court and asked for a further extension, which the court refused. The court cited as its reason that it could not open a judgment beyond the four month time limitation since it lacked subject matter jurisdiction. The court then signed an order transferring the certain stock to the defendant in accordance with the provisions of paragraph 5.1 (e) of the separation agreement. An appeal to the Appellate Court followed. We affirmed the judgment.

This civil action followed on February 19, 1998, in which the plaintiff is claiming an interest in a portion of the assets that the trial court transferred to the defendant.

Specifically, the plaintiff claims that the defendant was to receive a specific sum of lump sum alimony, that is, $575,000, and that the defendant has been unjustly enriched because she has received substantially more than that amount by virtue of the transfer due to an increase in the value of the stocks that were transferred. The present civil action seeks to enjoin the defendant from liquidating those assets she received pursuant to the separation agreement as well as an order requiring the defendant to transfer back to the plaintiff any assets or cash that would be in excess of the $575,000 contractual settlement. On March 16, 1998, the defendant filed a motion to dismiss, claiming that the court lacked subject matter jurisdiction. The trial court granted the motion to dismiss on August 18, 1998, finding that the court did not have subject matter jurisdiction. This appeal followed.

In this action, the plaintiff first claims that the court improperly granted the defendant’s motion to dismiss, which motion claimed that the court lacked subject matter jurisdiction. We agree. We conclude, however, that the defendant is entitled to summary judgment based on res judicata.

In Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999), our Supreme Court, in distinguishing the issue of subject matter jurisdiction and a court’s authority to act, stated that “[sjubject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the motion before it. . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. . . . Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.” (Citations omitted; internal quotation marks omitted.)

In this case, the cause of action is based on the agreement of the parties which, although it was incorporated into the judgment, provides the basis for the court’s jurisdiction. See Duse v. Carter, 9 Conn. App. 218, 220, 518 A.2d 74 (1986). The trial court noted, however, that this corut affirmed the dissolution court’s decision to permit the transfer of the assets to the defendant. The trial court further concluded that the plaintiffs attempt to come through the back door, when he is unable to come through the front door, cannot be sustained. The basis for the trial court’s decision — that the transfer order had been affirmed on a prior appeal— bars the plaintiffs claims under the principle of res judicata but does not bar the action on the basis of lack of subject matter jurisdiction.

“Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she [is limited to] resort[ing] to direct proceedings [i.e., an appeal] to correct perceived wrongs in the tribunal’s conclusive decision. ... A collateral attack on a judgment is . . . procedurally impermissible . . . .” (Citation omitted; internal quotation marks omitted.) Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., 236 Conn. 863, 876, 675 A.2d 441 (1996).

In Joe’s Pizza, Inc., the court, in an earlier action, had rendered a judgment declaring that the defendant did not have to provide insurance coverage for the plaintiff restaurant. The plaintiff then brought a contract action against the defendant seeking payment on a fire insurance policy. Id., 866-67. Our Supreme Court barred such a collateral attack and affirmed the trial court’s granting of summary judgment on the basis of res judicata. Id., 876-77.

As a matter of law, the defendant is entitled to summary judgment. See State v. Copeland, 205 Conn. 201, 208 n.3, 530 A.2d 603 (1987). Since we conclude that the dissolution judgment and the order transferring assets cannot be collaterally attacked, we reverse the judgment of dismissal and remand the case to the trial court with direction to render summary judgment in favor of the defendant. See State Library v. Freedom of Information Commission, 240 Conn. 824, 833, 694 A.2d 1235 (1997); Almeida v. Liberty Mutual Ins. Co., 234 Conn. 817, 826, 663 A.2d 382 (1995); see also State v. Angell, 237 Conn. 321, 330, 677 A.2d 912 (1996), quoting State v. Hamilton, 228 Conn. 234, 246, 636 A.2d 760 (1994).

The form of the judgment is improper, the judgment dismissing the action is reversed and the case is remanded with direction to render summary judgment in favor of the defendant.

In this opinion the other judges concurred.

       The first count alleges that the defendant has liquidated assets that she received in the dissolution proceeding for sums in excess of the lump sum alimony provided in the separation agreement and seeks to enjoin any further liquidation; the second count alleges a breach of contract on the defendant’s refusal to return the assets that are in excess of the lump sum specified in the contract (separation agreement); the third count alleges unjust enrichment; and the fourth count alleges a lack of good faith, which was implied in the contract (separation agreement).

       The plaintiff in this civil proceeding was the defendant in the dissolution proceeding, and the defendant in the dissolution proceeding is now the plaintiff in this civil proceeding.

       The pertinent provisions of the separation agreement to which the court referred are as follows:
      “4.2 The Husband shall be solely responsible for the installment loan at Gateway-Shawmut Bank on the property located at 16 Sharon Road, Trumbull, Connecticut and shall save and hold the Wife harmless. The Husband shall satisfy the balance of said equity loan within ninety (90) days from the date of judgment. . . .
      “5.i (a) The Husband shall pay to the Wife as a lump sum alimony and property settlement the sum of FIVE HUNDRED THOUSAND ($500,000.00) DOLLARS, none of which shall be dischargeable in bankruptcy or taxable to the Wife. Said amount shall be payable within one hundred twenty (120) days of the signing of this agreement.
      “(b) The Husband hereby grants a security interest in the following assets: his stock in Smuggler’s Cove Marina, Islamorada, Florida; his stock in Drywall Associates and Newtown Drywall, Newtown, Connecticut his pension valued at approximately FOUR HUNDRED THOUSAND ($400,000.00) DOLLARS from Drywall Associates and Newtown Drywall, hereafter the ‘secured asset’ to secure the Husband’s obligations under this Agreement.
      “(c) Simultaneously with the execution of this Agreement, the Husband shall execute an assignment and UCC-1 security interest filing on his stocks in Smuggler’s Cove Marina, Islamorada, Florida, his stock in Drywall Associates and Newtown Drywall, Newtown Connecticut and his pension of approximately FOUR HUNDRED THOUSAND ($400,000.00) DOLLARS in Drywall Associates and Newtown Drywall, Newtown, Connecticut. Said assignments and UCC-1 filings shall be released upon receipt by the Wife of said funds and the equity loan on the property in Trumbull, Connecticut being satisfied in full.
      “(d) Until such time as the Husband fully performs all of his obligations secured by the ‘secured assets’, the Husband shall not in any way look to sell, transfer, assign, pledge or otherwise take any action with respect to the ‘secured assets’ except for the security interest created in favor of the Wife hereunder.
      “Notwithstanding anything to the contrary herein, the Husband shall be permitted to pledge any of or all of the ‘secured assets’ for purposes of obtaining the funding necessary for the Husband to fulfill the cash payment provided herein. The Wife shall provide any and all releases of the security interest created in any of the ‘secured assets’ which the Husband deems necessary to pledge to obtain the funding of the settlement payment simultaneously with the delivery of the settlement funds.
      “(e) In the event that the Husband fails to perform all of his obligations under this Agreement, the Husband’s interest in the ‘secured assets’ shall be deemed to be assigned, transferred and conveyed to the Wife as a matter of law. . . .”

       See Feuerman v. Feuerman, 42 Conn. App. 907, 677 A.2d 997 (1996).


author: PELLEGRINO, J.

text:
    JOHN GREENE v. ALAN PERRY
    (AC 19847)
    Schaller, Zarella and Pellegrino, Js.
    Submitted on briefs September 15, 2000
    officially released March 20, 2001

      Ernest J. Cotnoir filed a brief for the appellant (defendant).

      Richard J. Duda filed a brief for the appellee (plaintiff).
   Opinion

PELLEGRINO, J.

The defendant, Alan Perry, appeals from the judgment of the trial court finding him negligent and in breach of a construction contract, and awarding damages to the plaintiff, John Greene. On appeal, the defendant claims that the court improperly (1) found that his faulty workmanship caused damage to the plaintiffs home because the defendant adhered to the architectural plans and (2) determined the amount of damages due to the plaintiff. We affirm the judgment of the trial court.

The court found the following facts. The defendant, a building contractor, entered into a written contract with the plaintiff to construct a residential dwelling on the plaintiffs property in Canterbury. The defendant was to follow an architectural plan and blueprints that provided for a main carrying beam, which would be supported by two Lally columns. An earlier version of the plan had called for three Lally columns to support the beam. One Lally column subsequently was removed to provide for more unobstructed space in the basement area. Before construction began, the architect orally informed the defendant that, although two columns would be adequate to support the beam, the defendant should install a steel carrying beam instead of a wooden one. Contrary to that instruction, the defendant installed a wooden carrying beam that he created by nailing together three two-by-twelve inch planks. Because the wooden beam provided inadequate weight load support, the floor in the main hallway of the house soon crowned and buckled. The plaintiff noticed the problem after taking possession of the premises. He retained a civil engineer to examine the structure of the dwelling. The engineer determined that the support system was overstressed and recommended remedial measures to prevent further structural damage.

The plaintiff thereafter brought this action against the defendant, alleging breach of contract and negligence because of unworkmanlike performance, and breach of express and implied new home warranties pursuant to General Statutes §§ 47-117 and 47-118. The plaintiff also sought reimbursement for the cost of the necessary structural repairs. After a trial, the court found that the warranty statutes were inapplicable, but that the defendant’s failure to use a steel carrying beam constituted faulty workmanship, and amounted to negligence and breach of the construction contract. The court awarded the plaintiff $19,700 in damages. This appeal followed.

The defendant’s claims on appeal involve questions of law and fact. Our standards of review are well settled. “[W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.” (Internal quotation marks omitted.) Keefe v. Norwalk Cove Marina, Inc., 57 Conn. App. 601, 609, 749 A.2d 1219, cert, denied, 254 Conn. 903, 755 A.2d 881 (2000).

I

The defendant first claims that the court improperly found that his workmanship was faulty and, thus, that he had constructed the plaintiffs house negligently. He argues that the damage to the plaintiffs home resulted from a defective architectural design. The defendant insists that because he built the plaintiffs dwelling in accordance with the architect’s written plans and because those plans did not specify a steel carrying beam, his workmanship cannot be found faulty, and he cannot be held responsible for the damage caused by the inadequate support system. We disagree.

“The existence of a duty of care is an essential element of negligence. ... A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act. . . . When negligent construction is alleged the plaintiff must prove that the defendant knew or should have known of the circumstances that would foreseeably result in the harm suffered.” (Citations omitted.) Cobum v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). “Abuilder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions.” Calderwood v. Bender, 189 Conn. 580, 584, 457 A.2d 313 (1983).

“The existence of a duty is a question of law and ... if such a duty is found to exist . . . the trier of fact then determine [s] whether the defendant violated that duty in the particular situation at hand.” (Internal quotation marks omitted.) Maffucci v. Royal Park Ltd. Partnership, 243 Conn. 552, 566, 707 A.2d 15 (1998). Here, the defendant held himself out to be a skilled builder, and the building contract contained a provision in which he guaranteed all materials and workmanship. We agree with the court that the defendant, therefore, had a duty to exercise the degree of care applicable to a skilled builder.

In finding that the defendant had breached that duty, the court relied on the testimony of the parties and several other witnesses, including a structural and civil engineer, a building contractor and a Canterbury building official. The defendant testified that the architect had told him that using only two Lally columns would be possible, but “he suggested that [plaintiff] put in a steel beam.” He testified that “[the architect] recommended that [the plaintiff] use a steel beam” and that the defendant ought “to tell [the plaintiff].” The defendant acknowledged that he was aware of the potential for stress on the beam due to the removal of the third column from the plan. The plaintiff, on the other hand, testified that he and the defendant had never discussed either the number of Lally columns or the need for a steel carrying beam. Michael P. Culmo, the structural and civil engineer, testified that had there been “a stronger floor system . . . and a stronger carrying beam . . . the system would’ve worked.”

“[I]t is well established that the evaluation of [witnesses’] testimony and credibility are wholly within the province of the trier of fact.” Szczerkowski v. Karmelowicz, 60 Conn. App. 429, 434, 759 A.2d 1050 (2000). Further, the issue of causation is normally a question of fact. Phinney v. Casale, 40 Conn. App. 495, 499, 671 A.2d 851 (1996). The court heard the testimony of the witnesses firsthand and found it to be credible. On the basis of that testimony and the other evidence presented, the court found that the architect had told the defendant that a steel carrying beam was necessary, that the defendant disregarded that instruction and used a wooden beam, and that the defendant failed to apprise the plaintiff of the architect’s recommendation. The court concluded that those omissions resulted in the damage to the plaintiffs home.

Considering those factual findings, the court held that the defendant had failed to exercise the ordinary prudence required of a skilled builder because he knew or should have known that a wooden beam was inadequate to handle the increased load that would result from the elimination of the third Lally column.

We have no basis for disturbing the court’s findings as to the critical facts. Although the defendant in his reply brief has directed us toward contradictory testimony that he claims is dispositive, we note that “[i]t is the trier’s exclusive province to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness’ testimony.” State v. Smith, 57 Conn. App. 290, 299, 748 A.2d 883, cert, denied, 253 Conn. 916, 754 A.2d 164 (2000).

Because we cannot conclude that the court’s factual findings were clearly erroneous or that its legal analysis was faulty, we hold that the court correctly found that the defendant was negligent and in breach of his contract with the plaintiff, and should be held responsible for the resulting losses.

II

The defendant also claims that the court improperly computed the amount of damages due to the plaintiff. He argues that the court, in effect, counted the cost of certain items of repair twice when it added together the costs of temporary repairs as shown on one exhibit, exhibit L, and the cost of permanent repairs as shown on another exhibit, exhibit K, because each exhibit listed some of the same remedial measures. We affirm the court’s computation of damages.

In computing the cost of repairs, the court did not utilize the estimate shown on exhibit K. In its response to the defendant’s motion for articulation on damages, the court explained that it utilized two figures on exhibit L to determine the total cost of the structural repairs. The court added together the amount already billed for temporary stabilization of the home and the amount noted as necessary to complete the balance of the repairs. Exhibit L does not contain any itemization of the work or materials necessary to complete the balance of the repairs, and the defendant did not seek further articulation of the court’s interpretation of that matter. Therefore, it is impossible for us to determine whether the court considered any particular items twice. “Our role is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court. . . . Without the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Alix v. Leech, 45 Conn. App. 1, 5, 692 A.2d 1309 (1997).

The defendant does not dispute that the court used the proper measure of damages. He disputes only their computation. “The trial court has broad discretion in determining damages, and we will not overturn its decision unless it is clearly erroneous.” Keefe v. Norwalk Cove Marina, Inc., supra, 57 Conn. App. 609. Here, the court reasonably based its computation of damages on the two figures included in exhibit L, which represented the remedial work already performed and that remaining. The court’s computation is not clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to the parties’ contract, the defendant agreed to construct the entire home, except for the foundation, “to [the owner’s] satisfaction,” and agreed that “all workmanship is guaranteed for one year.”

       General Statutes §§ 47-117 and 47-118 apply only if the builder constructs a home on a lot and sells both the lot and home to a third party. The plaintiff was not a “purchaser” within the meaning of those statutes. The plaintiff has not challenged that portion of the court’s ruling.

       Exhibit L listed a number of repairs and the amount billed for them as $4700. The exhibit also contained a notation that the “[t]otal cost of balance of work shall be $8,700.00 . . . .” The court referred explicitly to those figures in articulating its computation of damages. It made no reference to exhibit K.


text:
    STATE OF CONNECTICUT v. ERIC COHENS
    (AC 19366)
    Spear, Mihalakos and Freedman, Js.
    Argued October 23, 2000
    officially released March 20, 2001

      David V. DeRosa, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Matthew Couloute, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Eric Cohens, appeals from the judgment of conviction following a trial to the jury. He was charged with two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b) and two counts of sale of narcotics by a person who is not drug-dependent within 1500 feet of a school in violation of General Statutes § 21a-278a (b). At the close of the state’s evidence, the trial court granted the defendant’s motion for a judgment of acquittal on one count each of sale of narcotics by a person who is not drug-dependent in violation of § 2 la-278 (b) and sale of narcotics by a person who is not drug-dependent within 1500 feet of a school in violation of § 21a-278a (b). The jury found the defendant guilty of one count each of sale of narcotics by a person who is not drug-dependent in violation of § 21a-278 (b) and sale of narcotics within 1500 feet of a school by a person who is not drug-dependent in violation of § 21a-278a (b).

On appeal, the defendant raises four claims. The defendant first claims that the court violated his due process rights as guaranteed by the fourteenth amendment to the United States constitution and by the constitution of Connecticut in failing to grant his motion for a judgment of acquittal as to the charges of which he was convicted because the evidence presented was insufficient to support a conviction under §§ 21a-278 and 21a-278a. The defendant next claims that the court violated his right to counsel under the sixth amendment to the United States constitution, article first, § 8, of the constitution of Connecticut, General Statutes § 51-296, and Practice Book § 44-1 in that the court failed to obtain his waiver of his right to counsel and failed to canvass him in accordance with Practice Book § 44-3 to determine if he was making a knowing and intelligent waiver of his right to counsel. The defendant’s third claim is that Practice Book § 44-5 does not serve the interest of justice in that it does not allow a defense attorney to assume a proactive role as standby counsel in a trial. The defendant’s final claim is that the court abused its discretion when it submitted a transcript to the jury of the November 20, 1998 proceedings without redacting comments the court made to the defendant, outside the jury’s presence, regarding his ability to represent himself.

We conclude that the evidence was sufficient to sustain the conviction, but we reverse the judgment because the defendant’s right to counsel was violated. In view of the reversal, it is not necessary for us to address the defendant’s other claims, as they are unlikely to arise in the new trial.

The jury reasonably could have found the following facts. On March 17, 1998, the Norwalk police department special services unit was investigating the sale of illegal narcotics at a grocery store that was a well known site of drug trafficking and was within 1500 feet of a school. Officer Peter White observed the defendant make a telephone call, walk into the grocery store and come out carrying a small bag. White then saw a man approach the defendant. The man spoke to the defendant and handed him some cash. In exchange, the defendant pulled a small item from his pocket and handed it to the man. The man then walked away. He was immediately arrested one block from the grocery store. A piece of crack cocaine was found clenched in the man’s fist. The defendant also was arrested within one block of the grocery store. One hundred forty-five dollars in cash was found on his person at the time of his arrest.

I

The defendant claims that the court violated his right to counsel under the sixth amendment to the United States constitution, article first, § 8, of the constitution of Connecticut, General Statutes § 51-296 and Practice Book § 44-1 by ordering him to represent himself, failing to obtain a waiver of his right to counsel and, in the alternative, by failing to canvass him to determine if he was making a knowing and intelligent waiver of his right to counsel in accordance with Practice Book § 44-3. We agree.

Because the defendant concedes that his claim is unpreserved, he asks for review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The first two steps in the Golding analysis address the reviewability of the claim, whereas the last two steps address the merits of the claim. State v. Hafford, 252 Conn. 274, 305, 746 A.2d 150, cert, denied, 531 U.S. 855, 121 S. Ct. 136, 148 L. Ed. 2d 89 (2000). With regard to the first condition of Golding, we conclude that the record is adequate for review. We next turn to the second condition of Golding, that is, whether the defendant’s claim is of constitutional magnitude alleging the violation of a fundamental right. We conclude that it is a claim of constitutional magnitude. See Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Piorkowski, 243 Conn. 205, 214-15, 700 A.2d 1146 (1997).

The following facts are relevant to the consideration of the defendant’s second claim. On October 21, 1998, the defendant appeared before the court, Dean, J., for scheduling. The defendant was represented by special public defender Stephen M. Feinstein. Feinstein informed the court that the defendant would not discuss plea negotiations with him. Also, the defendant informed the court that Feinstein was not representing him correctly. The court then stated, “I’ll tell you what we’re going to do, set it down for a trial date, and you appear with him and sit next to him, and you can try your own case, but you will have a lawyer next to you.” The court then appointed Feinstein to serve as standby counsel for the defendant. The court explained Feinstein’s function to the defendant, stating, “You’re going to have a lawyer sitting next to you in the trial. And if you want to talk to him, you can talk. If you don’t want to talk, you don’t have to, that’s the way it’s going to be.”

Jury selection began on November 17, 1998, before the court, Rodriguez, J., Feinstein informed the court that the defendant would be representing himself and that he, Feinstein, would serve as standby attorney. The court expressed concern about the defendant’s self-representation and asked the defendant if he would like to hire a private attorney. The defendant stated that he wanted a different public defender to be appointed to his case because he did not believe that Feinstein was doing a good job. The court told the defendant that he had not offered a reason that would entitle him to new appointed counsel. Jury selection proceeded with the defendant representing himself.

The court began the second day of jury selection by canvassing the defendant and stating, “I know all people are not the same, and I am not saying that you can’t represent yourself, Mr. Cohens. I have to have this discussion with you because I have to make certain findings because I don’t know if certain findings were made before when you were in front of another judge. I want to be comfortable with this because I don’t agree with your decision to represent yourself.” After questioning the defendant regarding his background and understanding of the charges against him, the court allowed him to continue representing himself.

Practice Book § 44-3 sets forth the requirements surrounding a criminal defendant’s waiver of the assistance of counsel at trial. The presiding judge first must make a thorough inquiry of the defendant and must be satisfied that the defendant (1) was clearly advised of his right to the assistance of counsel, (2) has the intelligence and capacity necessary to understand the consequences of his decision to represent himself, (3) understands the nature of the charges against him, the court proceedings, the range of possible punishments to which he will be subjected and any further facts necessary to a broad understanding of the case, and (4) has been apprised of the dangers and disadvantages of representing himself.

In this case, the appropriate time for a trial judge to have ascertained all of the aforementioned factors and obtained the defendant’s waiver of his right to the assistance of counsel was during the defendant’s pretrial court appearance before Judge Dean. The state did not present any evidence that Judge Dean either canvassed the defendant or obtained a knowing waiver from him, and Judge Rodriguez did not canvass the defendant until the second day of jury selection. As a result of the actions of the court, Dean, J., the defendant was deprived of counsel who could have prepared for trial. The defendant also was deprived of counsel at a critical stage of the proceedings — the selection of the jury. See State v. Gethers, 197 Conn. 369, 375-76, 497 A.2d 408 (1985). That deprivation of counsel created a structural defect in the trial proceedings and mandates reversal of the judgment of conviction. See State v. Anderson, 255 Conn. 425, 445, 773 A.2d 287 (2001).

The sixth amendment to the United States constitution provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance of counsel for his defense.” “Article first, § 8, of the constitution of Connecticut, which is textually similar to the sixth amendment to the federal constitution, provides in relevant part that ‘[i]n all criminal prosecutions, the accused shall have [a] right to be heard by himself and by counsel ....’” State v. Piorkowski, supra, 243 Conn. 215. “This state has had a long history of recognizing the significance of the right to counsel, even before that right attained federal constitutional importance.” State v. Stoddard, 206 Conn. 157, 164, 537 A.2d 446 (1988).

The United States Supreme Court has definitively held that “due process requires that the accused have the assistance of counsel for his defense . . . .” (Internal quotation marks omitted.) Argersinger v. Hamlin, 407 U.S. 25, 28, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel.” (Internal quotation marks omitted.) Id., 31.

The pretrial court here in effect forced the defendant to proceed to trial pro se. The defendant appeared before the court, Dean, J., for pretrial scheduling and requested that a different public defender be assigned to his case. In response, the court told the defendant that he would be representing himself and that Feinstein would serve in the limited capacity of standby counsel. At no time did Judge Dean inform the defendant of his right to counsel.

We conclude that the defendant was not timely canvassed and that a timely waiver of his right to the assistance of counsel was not obtained. We further conclude that the defendant’s right to counsel as guaranteed by the sixth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut was violated.

II

The defendant also claims that the court violated his due process rights as guaranteed under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut by failing to grant his motion for a judgment of acquittal as to the charges of which he was convicted because the evidence presented was insufficient to support that conviction under §§ 21a-278 and 21a-278a. We disagree.

“In reviewing [a] sufficiency [of the evidence] claim, we apply a [two part] test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct.” (Internal quotation marks omitted.) State v. Carpenter, 214 Conn. 77, 570 A.2d 203 (1990), on appeal after remand, 220 Conn. 169, 595 A.2d 881 (1991), cert, denied, 502 U.S. 1034, 112 S. Ct. 877, 116 L. Ed. 2d 781 (1992). “The scope of our factual inquiry on appeal is limited. This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Brown, 235 Conn. 502, 510, 668 A.2d 1288 (1995). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) Id. “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.” (Internal quotation marks omitted.) Id., 510-11.

Applying those long established guidelines to the case at hand, we conclude that the evidence presented by the prosecution could have persuaded the jury, beyond a reasonable doubt, that the defendant had committed the crimes of selling narcotics, as a person who was not drug-dependent, and of selling narcotics, as a person who was not drug-dependent, within 1500 feet of a school. At trial, the state demonstrated that the defendant had engaged in two transactions at a location that was well known for illegal drug activity and was within 1500 feet of a school. White, a police officer, observed the defendant deliver a small object to a man and receive money in return. When the man was apprehended, he had a piece of crack cocaine clenched in one hand. The jury reasonably could have inferred from that evidence that the defendant sold a piece of crack cocaine to the man within 1500 feet of a school.

On the basis of the evidence and the inferences that reasonably could be drawn therefrom, the jury could have concluded beyond a reasonable doubt that the defendant, who was not drug-dependent, had sold narcotics within 1500 feet of a school. Because that evidence was sufficient to support the jury’s verdict of guilty as to both charges, we do not disturb the court’s judgment on the ground of evidentiary insufficiency.

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

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who . . . distributes, sells . . . transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section . . . 21a-278 by . . . distributing, selling . . . dispensing . . . transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section . . . 21a-278. To constitute a violation of this subsection, an act of transporting or possessing a controlled substance shall be with intent to sell or dispense in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . .

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him . . . and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. . . .”

       General Statutes § 51-296 provides in relevant part: “(a) In any criminal action . . . the court before which the matter is pending shall, if it determines after investigation by the public defender or his office that a defendant is indigent as defined under this chapter, designate a public defender, assistant public defender or deputy assistant public defender to represent such indigent defendant ....
      “(c) Prior to a defendant’s appearance in court in any matter specified in subsection (a) of this section, a public defender, assistant public defender or deputy assistant public defender, upon a determination that the defendant is indigent pursuant to subsection (a) of section 51-297, shall be authorized to represent the defendant until the court appoints counsel for such defendant. ”

       Practice Book § 44-1 provides in relevant part: “A person who is charged with an offense punishable by imprisonment . . . and who is unable to obtain counsel by reason of indigency shall be entitled to have counsel represent him or her unless:
      “(1) The person waives such appointment pursuant to Section 44-3

       Practice Book § 44-3 provides: “A defendant shall be permitted to waive the right to counsel and shall be permitted to represent himself or herself at any stage of the proceedings, either prior to or following the appointment of counsel. A waiver will be accepted only after the judicial authority makes a thorough inquiry and is satisfied that the defendant:
      “(1) Has been clearly advised of the right to the assistance of counsel, including the right to the assignment of counsel when so entitled;
      “(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent oneself;
      “(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
      “(4) Has been made aware of the dangers and disadvantages of self-representation.”

       Practice Book § 44-5 provides: “If requested to do so by the defendant, the standby counsel shall advise the defendant as to legal procedural matters. If there is no objection by the defendant, such counsel may also call the judicial authority’s attention to matters favorable to the defendant. Such counsel shall not interfere with the defendant’s presentation of the case and may give advice only upon request.”


author: ZARELLA, J.

text:
    STATE OF CONNECTICUT v. DAMIAN THOMAS
    (AC 20235)
    Schaller, Zarella and Peters, Js.
    Argued December 5, 2000
    officially released March 20, 2001

      Frank P. Cannatelli, for the appellant (defendant).

      Bruce R. Lockwood, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Opinion

ZARELLA, J.

The defendant, Damian Thomas, appeals from the judgment of conviction, rendered after a jury trial, of four counts of felony murder in violation of General Statutes § 53a-54c and one count of carrying a pistol without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that (1) the evidence was insufficient to support the felony murder conviction, (2) the court’s failure to instruct the jury, sua sponte, on the defense of extreme emotional disturbance constituted plain error and (3) the court violated his constitutional right against double jeopardy by convicting him of four counts of felony murder when there were only two homicide victims. We affirm the judgment of the trial court in part and reverse it in part.

The jury reasonably could have found the following facts. On December 25, 1997, the defendant was at the Alley Cat Night Club in New Haven with Holbert Brown, Ricardo Beckford and Corey Merritt. At approximately 1 a.m., they left the nightclub and drove around New Haven. When they entered the NewhalMUe section of New Haven, the defendant asked the driver, Brown, to pull the car over. The defendant exited the car alone and proceeded around the comer to a residence at 622 Winchester Avenue.

Several people were standing outside the residence. Anthony Mitchell, Tavis Anderson and Ronnie Washington were on the porch of the residence. Joe Foskey and Jevon Langley were on the steps of the porch. The defendant approached the residence with a gun in his hand and stated, “Stick up” and “nobody move.” Mitchell, Anderson and Washington ran into the residence. Mitchell and Washington hid in separate bedrooms in the residence while Anderson fled out the back door. From the bedroom, Mitchell observed the defendant follow Foskey and Langley into the living room of the house. The defendant stated to Langley and Foskey, “Lay down. Give me everything. Don’t look up.” Mitchell witnessed the defendant shoot Langley, who lay on the floor. Mitchell heard another shot, but could not see at whom the defendant shot. Shortly thereafter, Mitchell heard another shot outside. Mitchell later identified the defendant from a photographic array as the person who “killed two people.” He also identified the defendant at trial.

Washington, who was hiding in the bedroom, could see Langley, but could not see Foskey. Twice he heard the defendant say “to run everything,” which is street parlance for give me everything. Langley refused to comply with the defendant’s order. Washington then saw the defendant shoot Langley. He did not see the defendant shoot Foskey, but he heard the shot. He heard another shot fired after the defendant left the house. Washington was unable to identify the defendant as the person who shot Langley and Foskey.

After the shootings, the defendant ran to the waiting car, jumped in it and directed Brown to drive away. Merritt, who was seated in the backseat, observed the defendant with a .41 caliber handgun. Merritt had seen the defendant with this handgun on previous occasions.

Foskey and Langley died from bullet wounds. The bullets were .41 caliber and had been fired from the same gun. On January 20, 1998, the police arrested the defendant. The defendant confessed to the shootings at the police station. He testified at trial, however, that he did not commit the crimes and that the police had coerced his confession.

The jury found the defendant guilty of four counts of felony murder and one count of carrying a pistol without a permit based on a March 8,1999 information. The court then imposed the following sentence on May 28, 1999: Count two of felony murder based on the death of Foskey during a robbery, sixty years; count three of felony murder based on the death of Langley during a robbery, sixty years, concurrent with the sentence imposed on count two; count four of felony murder based on the death of Foskey during a burglary, sixty years, consecutive to the sentence imposed on counts two and three; count five of felony murder based on the death of Langley during a burglary, sixty years, consecutive with the sentence imposed on counts two and three and concurrent with count four; and count eight of carrying a pistol without a permit, five years, concurrent with the sentence imposed on counts two, three, four and five. The total effective sentence was 120 years. This appeal followed.

I

The defendant first claims that the evidence was insufficient to support his conviction for felony murder. Although the defendant concedes that there was sufficient evidence to establish that he intended to kill the victims, he contends that there was insufficient evidence for the jury to find that he intended to rob or burglarize the victims. In essence, the defendant contends that the jury assumed an underlying felony where there was none and he was, therefore, wrongfully convicted under our felony murder statute. The defendant did not preserve this insufficiency of the evidence claim at trial. He seeks review, however, under the plain error doctrine pursuant to Practice Book § 60-5. We find no merit to the defendant’s claim.

We begin by noting that the defendant’s unpreserved sufficiency of the evidence claim is not reviewable under the plain error doctrine, but rather is reviewable under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because it involves a fundamental constitutional right. “Although the defendant failed to raise this claim at trial, our Supreme Court has stated that unpreserved sufficiency of the evidence claims satisfy the requirements of State v. Golding, [supra, 213 Conn. 233] . . . and are therefore reviewable because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.” (Internal quotation marks omitted.) State v. Scott, 55 Conn. App. 660, 664, 740 A.2d 441 (1999), cert, granted on other grounds, 252 Conn. 918, 744 A.2d 439 (2000); see also State v. Roy, 233 Conn. 211, 212, 658 A.2d 566 (1995).

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the fight most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

We note that “[f]elony murder occurs when, in the course of and in furtherance of another crime, one of the participants in that crime causes the death of a person who is not a participant in the crime.” (Internal quotation marks omitted.) Id., 733.

First, in the present case the jury reasonably could have found the defendant guilty of attempt to commit robbery. “A person is guilty of criminal attempt if, acting with the kind of mental state required for the commission of the crime, he intentionally engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be or if he intentionally commits an act that constitutes a substantial step in a course of conduct planned to culminate in the commission of the crime.” State v. Wallace, 56 Conn. App. 730, 740, 745 A.2d 216, cert, denied, 253 Conn. 901, 753 A.2d 939 (2000); see General Statutes § 53a-49. “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of . . . compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.” General Statutes § 53a-133 (2). “Aperson commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner.” General Statutes § 53a-119.

The jury reasonably could have found that the defendant approached the two victims with a .41 caliber handgun, stated, “Stick up” and “nobody move,” and then forced them into the house. The jury also reasonably could have inferred that the defendant ordered them to “lay down,” to “give [him] eveiything” and not to “look up” because he intended to rob them. We conclude that the jury reasonably could have found that the defendant’s conduct constituted a substantial step toward the commission of the crime of robbery.

Second, the jury reasonably could have found that the defendant committed burglary. The defendant argues that there is insufficient evidence of a robbery. He maintains that there is “[n]o evidence at all of an intent to rob or a robbery in progress. All actions of the defendant appear consistent with that of simply wanting to kill the victims.” Under this reasoning, robbery could not serve as the underlying crime for the felony of burglary. The facts, however, do not support the defendant’s argument. There is evidence indicating that the defendant entered the residence with the intent to commit a robbery therein and was, therefore, guilty of burglary. “A person is guilty of burglary . . . when he enters or remains unlawfully in a building with intent to commit a crime therein.” General Statutes § 53a-103 (a). The jury reasonably could have concluded that the defendant entered the residence at 622 Winchester Avenue in New Haven with the intent to rob the victims he had forced inside. We conclude that the jury reasonably could have found the defendant guilty of burglary in accordance with the statute.

“[T]o sustain the court’s finding of probable cause as to the felony murder charge, there must be sufficient evidence that the [defendant] was committing or attempting to commit one of certain enumerated crimes and in the course of and in furtherance of or in flight therefrom he caused the deaths of the victims.” (Internal quotation marks omitted.) In re Michael B., 36 Conn. App. 364, 372, 650 A.2d 1251 (1994). “[T]he state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony.” (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 786, 717 A.2d 1140 (1998). In the present case, the jury reasonably could have concluded that the defendant killed the two victims in the course of and in furtherance of an attempted robbery and burglary. Consequently, the defendant’s claim of insufficient evidence with respect to his felony murder conviction is without merit.

II

The defendant next claims that the court’s failure to instruct the jury, sua sponte, on the defense of extreme emotional distress constituted plain error. We disagree.

The defendant requests that this court consider the validity of our Supreme Court’s holding in State v. Veal, 201 Conn. 368,517 A.2d 615 (1986). In Veal, our Supreme Court stated: “We have never held . . . that a trial court has a due process obligation to examine the evidence sua sponte to see whether it supports the existence of the mitigating circumstances contemplated by the defense of extreme emotional disturbance. On the contrary, we have previously concluded that a trial court has not deprived a defendant of a fundamental constitutional right and a fair trial by giving a jury instruction that, in the absence of a timely request or exception, omits any reference to an affirmative defense such as extreme emotional disturbance.” Id., 373; see also State v. Preyer, 198 Conn. 190,197-98 n.9, 502 A.2d 858 (1985); State v. Jacobowitz, 194 Conn. 408, 411-12, 480 A.2d 557 (1984).

Our Supreme Court’s decision in Veal is controlling. “We are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.” State v. Potts, 55 Conn. App. 469, 474, 739 A.2d 1280, cert, denied, 252 Conn. 905,743 A.2d 616 (1999). Accordingly, we find no merit to the defendant’s claim that the court’s failure to instruct the jury, sua sponte, on the defense of extreme emotional distress constituted plain error.

Ill

The defendant’s final claim is that the court violated his constitutional right against double jeopardy by convicting him on four counts of felony murder when there were only two homicide victims. The state disagrees with the contention that the defendant was improperly convicted, but concedes that the court improperly sentenced the defendant on four counts of felony murder. We conclude that the sentencing on four counts of felony murder violated the defendant’s rights.

The double jeopardy clause of the fifth amendment prohibits “not only multiple trials, but also multiple punishments for the same offense in a single trial.” State v. Devino, 195 Conn. 70, 73,485 A.2d 1302 (1985). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” (Internal quotation marks omitted.) State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert, denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

In regard to the felony murder statute, our Supreme Court has determined that “[t]he statute refers to the death of ‘a person’ in the singular. A fundamental purpose of the criminal law is to protect individual citizens from the criminal conduct of another. People are neither fungible nor amorphous. Where crimes against persons are involved, a separate interest of society has been invaded for each violation. Therefore when two or more persons are the victims of a single episode there are as many offenses as there are victims.” State v. Couture, 194 Conn. 530, 565-66, 482 A.2d 300 (1984), cert, denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

In State v. John, 210 Conn. 652, 557 A.2d 93, cert, denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989), the defendant was convicted of felony murder and manslaughter in the first degree for a single homicide. Our Supreme Court stated that “[o]n the basis of our holding in State v. Couture, [supra, 194 Conn. 530] . . . and a review of the felony murder statute, however, we conclude that the legislature contemplated that the two statutory provisions should be treated as a single crime for double jeopardy purposes.” State v. John, supra, 695. Accordingly, our Supreme Court held that “[t]he history of the murder and felony murder statutes, read in conjunction with our holding in Couture, indicates that the legislature contemplated that only one punishment would be imposed for a single homicide, even if that homicide involved the violation of two separate statutory provisions.” Id., 696. Following the reasoning and the holdings of our Supreme Court in John and Couture, we determine that the felony murder conviction based on the crime of attempt to commit robbery and the felony murder conviction based on the crime of burglary for each victim are treated as a single crime for double jeopardy purposes.

Having determined that the court violated the defendant’s double jeopardy rights by sentencing him on four counts of felony murder when there were only two victims, we now must ascertain a proper remedy for the violation.

Our Supreme Court in Chicano addressed the issue of the appropriate form of the remand when a court has imposed multiple punishments for the same crime. In Chicano, the state requested that the court vacate the sentence only and not the conviction. The court stated that “[t]he procedural format of this request is consistent with the procedure followed by the Second Circuit Court of Appeals . . . but it is not consistent with the procedure followed by this court in prior cases involving successful double jeopardy claims.” (Citations omitted.) State v. Chicano, supra, 216 Conn. 721-22 n.18. Moreover, the court noted that “[a] majority of the circuits follow the procedure of vacating both the conviction and the sentence on the lesser offense . . . [however] [t]he procedure of vacating only the sentence has found support in at least three circuits other than the Second Circuit.” (Citations omitted). Id., 724 n.19.

Our Supreme Court in Chicano determined that the “Second Circuit’s approach to this procedural issue adequately addresses the dual concerns relating to a subsequent reversal of the remaining conviction and subjecting a defendant to the collateral consequences of multiple convictions.” Id., 725. The court held, therefore, that the proper procedure when a court has imposed multiple punishments for the same offense is to vacate only the additional sentence and not the conviction. Id.

The judgment is reversed in part and the case is remanded with direction to vacate the sentences on counts four and five, to combine the conviction on count four with the conviction on count two and to combine the conviction on count five with the conviction on count three, and for resentencing on counts two and three. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 53a-54c provides: “A person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants, except that in any prosecution under this section, in which the defendant was not the only participant in the underlying crime, it shall be an affirmative defense that the defendant: (1) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within the dwelling house or place of business of such person, without a permit to carry the same issued as provided in section 29-28. . . .”

       The following colloquy occurred at trial:
      “[State’s Attorney]: When you say this person said ‘run everything’ to [Langley], is that correct, ‘run everything’ means what?
      “[Washington]: Give him everything he got.

        “[State’s Attorney]: Is that a robbery?
      “[Washington]: Yes, sir.”

       The jury found the defendant not guilty on count one of capítol felony, count six of murder and count seven of murder.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       “In State v. Roy, supra, 233 Conn. 212, our Supreme Court held that review of the defendant’s unpreserved claim of constitutional error and failure to seek a review under the principles of State v. Golding, supra, 213 Conn. 233, should not have prevented the Appellate Court from reviewing the defendant’s challenge to the sufficiency of the evidence for his conviction. The decision notes that ‘[i]n the circumstances of this case,’ the merits of the defendant’s challenge should have been reviewed. ... It is not certain, therefore, whether the principle of Roy applies to all alleged constitutional deprivations or only those that relate to a claim that the evidence was insufficient to convince a trier that every element of an offense has been proven beyond a reasonable doubt. We interpret the words ‘[i]n the circumstances of this case’ to refer to unpreserved sufficiency claims and not to the particular factual situation presented in Roy." (Citation omitted.) State v. Rogers, 38 Conn. App. 777, 788 n.10, 664 A.2d 291, cert, denied, 235 Conn. 918, 665 A.2d 610 (1995), cert, denied, 516 U.S. 1084, 116 S. Ct. 799, 133 L. Ed. 2d 747 (1996).

       At oral argument before this court, the defendant joined with the state in conceding that we should remand the case to the trial court for the purpose of merging (he counts.