text:
    State of Connecticut v. Anthony Arena
    (11564)
    Lavery, Freedman and Schaller, Js.

      Argued October 26, 1993
    decision released January 25, 1994

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Herbert Carlson, Jr., and Kimberly Graham, assistant state’s attorneys, for the appellee (state).
   Freedman, 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 larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). The defendant claims that the trial court improperly (1) denied his motion to suppress a victim’s out-of-court identification of him, (2) denied his motion for judgment of acquittal because the evidence was insufficient to support his conviction of robbery in the first degree, (3) refused to grant his request that it instruct the jury on the crime of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), as a lesser included offense of the crime of robbery in the first degree especially after the court permitted counsel to argue robbery in the second degree to the jury, (4) denied his motion for judgment of acquittal because the evidence was insufficient to support his conviction of larceny in the second degree, and (5) failed to charge as requested on the count of larceny in the second degree. The judgment of the trial court is affirmed.

The jury reasonably could have found the following facts. On August 13, 1991, at about 7:30 p.m., the defendant entered a Chucky’s convenience store in Hartford. Two employees, Dhanwantie Ramdayal and Alexander Smolkin, were standing behind the counter. The defendant picked out a candy and took it to the counter. He then told Ramdayal to “put it in a bag.” Ramdayal was confused by the defendant’s statement and asked, “Put what in a bag?” The defendant answered, “Put all the money in a bag.” As the defendant said that, he placed an opaque plastic shopping bag on the counter. His hand was at the top of the bag and he gripped an object inside the bag. He pointed the object in the bag at Ramdayal. Ramdayal testified that she thought it looked like a gun and that it was round and about fifteen or sixteen inches long.

As the defendant was asking for the money, Smolkin walked toward the phone. The defendant then said to Smolkin, “Don’t call the police” and “Don’t play cool.” Smolkin turned and saw the object in the bag in the defendant’s hand. Smolkin could see the shape of the object and thought it looked like a long barrelled weapon. Smolkin further testified that in trying to make light of the situation during the robbery he joked, “Is that a real gun?” and “Is it a real robbery?”

Ramdayal was nervous and had difficulty opening the cash register. The defendant told her to open the register fast and “hurry up” and “nothing will happen.” When she opened the register, she withdrew the cash from the drawer. She did not know the precise amount of money she withdrew, but she knew it was less than $100, because it is the store’s policy not to have more than $100 in the drawer. She extended her hand with the money in it and the defendant snatched the money out of her hand. The defendant turned and left the store quickly, and Ramdayal called the police. The incident was taped by security cameras and the tapes were shown to the jury and admitted into evidence.

On or about September 11,1991, the defendant was arrested and charged with robbery in the first degree, larceny in the second degree and larceny in the sixth degree. He pleaded not guilty to those charges. The trial commenced on May 6, 1992. At the close of the state’s case, the defendant filed a motion for judgment of acquittal and a motion for a new trial with respect to the robbery in the first degree and larceny in the second degree counts. The trial court denied the motion with respect to the robbery count and reserved judgment with respect to the count of larceny in the second degree. On May 15, 1992, the jury returned a verdict of guilty on all three charges. At the sentencing hearing, the defendant moved for a judgment of acquittal with respect to both larceny convictions. The trial court denied the motion with respect to the larceny in the second degree conviction and granted the motion with respect to the conviction of larceny in the sixth degree. This appeal by the defendant followed.

I

The defendant first claims that the trial court improperly denied the defendant’s motion to suppress Smolkin’s out-of-court identification of the defendant. The trial court held a pretrial hearing on the motion. The following additional facts are necessary for the disposition of this claim.

At the hearing, Smolkin testified that during the robbery he had a good opportunity to observe the defendant in that he was standing behind the counter and looking directly at the defendant’s face. Smolkin described the defendant as being about five feet six inches tall with straight, short hair and light skin, wearing a short-sleeve T-shirt, and having callouses on his left hand.

On September 11,1991, Hartford police officer Gary Smith showed Smolkin an array of eight photographs of similar looking men. The defendant’s photograph was in position four, the right end of the top row. The photographs were located on one half of a manila folder and there were spaces for the signatures of witnesses on the other half. The signature spaces were arranged to correspond to the location of each photograph. When the folder was open, the photographs and the signature spaces were visible. When it was folded back, however, only the photographs were visible. When Smith showed the board to Smolkin, the signature spaces were folded under, and the folder was laid flat on the table in front of Smolkin. The signature spaces were not visible. Smolkin could have turned the folder over and viewed the signature spaces. Smith testified that at no time prior to his making the identification, however, did Smolkin turn the folder over.

The signature space corresponding to the photograph of the defendant contained the signature of Angel Gonzalez. This signature apparently related to an identification of the defendant, made earlier that day, as the perpetrator in an unrelated robbery. There were no other signatures in the spaces on the folder.

After the hearing on the motion to suppress, the trial court denied the motion, ruling that the procedures were not unnecessarily suggestive, and therefore declined to address the issue of the reliability of the identification.

“We have repeatedly held that a conviction based on an in-court identification which follows an out-of-court photographic identification will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Vass, [191 Conn. 604, 609, 469 A.2d 767 (1983)]; State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure. State v. Hinton, 196 Conn. 289, 293, 493 A.2d 836 (1985); State v. Fullwood, supra, 244. The determination whether an identification procedure has violated a defendant’s due process rights must be made on an ad hoc basis. The inquiry is two-pronged: [F]irst, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the totality of the circumstances. State v. Hinton, supra, 292-93, quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985). State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985).” (Internal quotation marks omitted.) State v. Vaughn, 199 Conn. 557, 563, 508 A.2d 430, cert. denied, 479 U.S. 989, 107 S. Ct. 583, 93 L. Ed. 2d 585 (1986).

With regard to the first prong, the defendant claims that Gonzalez’ signature in the signature space corresponding to the defendant’s photograph resulted in an unnecessarily suggestive identification. We disagree.

In State v. Vaughn, supra, 565, our Supreme Court held that a photographic array, containing a variety of photographs, was not unnecessarily suggestive, where the photograph of the defendant was marked with the date that the identifying witness had been notified by the police that a suspect had been apprehended. The court reasoned that the record did not indicate that the witness had noticed the date on the photograph when he viewed the array.

Here, there is nothing in the record to indicate that Smolkin saw Gonzalez’ signature. In fact, the record indicates that Smolkin did not see the signature before identifying the defendant. Therefore, we hold that the array used in this case was not unnecessarily suggestive, and, thus, we need not consider the second prong regarding the reliability of the identification.

II

The defendant next claims that the trial court improperly denied the defendant’s motion for judgment of acquittal because the evidence was insufficient to support the defendant’s conviction of robbery in the first degree. The defendant claims that there was no evidence that he displayed or represented by his words or conduct that he had a firearm. We disagree.

“To determine the sufficiency of the evidence to sustain a conviction, we apply a twofold test. . . . We first construe the evidence in the light most favorable to sustaining the verdict. . . . We then determine whether, from that evidence and all the reasonable inferences which it yields, [the jury] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. ... In this examination, we consider whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt .... 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. . . . It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Citations omitted; internal quotation marks omitted.) State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43 (1992), cert. denied, 225 Conn. 904, 621 A.2d 287, cert. denied, U.S. , 113 S. Ct. 3057, 125 L. Ed. 2d 740 (1993).

“When applying the sufficiency of the evidence test, the court must ensure that [e]ach essential element of the crime charged . . . [was] established by proof beyond a reasonable doubt, and although it is within the province of the [trier] to draw reasonable, logical inferences from the facts proven, [it] may not resort to speculation and conjecture. . . . Where it cannot be said that a rational trier of fact could find guilt proven beyond a reasonable doubt, then, a conviction cannot constitutionally stand, as it is violative of due process under the fourteenth amendment. . . . [T]he burden rested upon the prosecution to prove the guilt of the accused, i.e., to prove each material element of the offense charged beyond a reasonable doubt. . . .” (Citations omitted; internal quotation marks omitted.) State v. Lee, 32 Conn. App. 84, 97-98, 628 A.2d 624, cert. denied, 227 Conn. 924, 632 A.2d 702 (1993).

To prove robbery in the first degree, the state must establish beyond a reasonable doubt that the defendant, in the course of the commission of the crime of robbery, displayed or threatened the use of what he represented by his words or conduct to be a firearm. General Statutes § 53a-134 (a) (4). At trial, the state presented evidence demonstrating that the defendant’s conduct implied that he was carrying a firearm. Both witnesses testified that in his right hand he was holding a bag they thought concealed a gun. The defendant suggested that the bag’s only purpose was to hold the money. The test, however, is not whether he actually had a firearm but whether he “displayed] or threatened] the use of what he represented] by his words or conduct to be a . . . firearm . . . .” General Statutes § 53a-134 (a) (4). We acknowledge that this is not a situation where the defendant said he had a gun or represented that he would shoot if his demands were not met. The evidence presented at trial, however, did include the defendant’s statement to one of the witnesses “hurry up” and “nothing will happen.” Implicit in that statement is a threat of harm.

We now consider this evidence in the light most favorable to sustaining the verdict. Considering that statement by the defendant and the way the defendant held the object in the bag, the jury could reasonably have inferred that the defendant either carried a firearm or wanted the store clerks to think he had a firearm. Although the jurors may draw reasonable, logical inferences from the facts proven, they may not resort to speculation and conjecture. State v. Morrill, 193 Conn. 602, 608, 478 A.2d 994 (1984). We conclude that the facts in this case do not require the jury to resort to speculation or conjecture to infer that the defendant acted as though he carried a firearm.

Because there was sufficient evidence for the jury to infer that the defendant acted as though he carried a firearm, the court properly denied the defendant’s motion for judgment of acquittal on the charge of robbery in the first degree.

Ill

The defendant next claims that the trial judge improperly refused to grant his request for an instruction to the jury on the crime of robbery in the second degree in violation of General Statutes § 53a-135 (a) (2), as a lesser included offense of the crime of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). Additionally, the defendant claims he was further prejudiced by the trial court’s permitting counsel to argue robbery in the second degree to the jury and then failing to charge on it. We do not agree.

The following additional facts are necessary for the disposition of these claims. The defendant filed a request to charge asking the court to instruct the jury that it could find the defendant guilty of robbery in the second degree as a lesser included offense of robbery in the first degree. Out of the presence of the jury, the trial court stated it would charge on robbery in the second degree and robbery in the third degree as lesser included offenses. The defendant explained to the jury in his closing argument that they could find the defendant guilty of robbery in the second degree. The prosecution also argued robbery in the second degree to the jury-

Before the charge to the jury, however, the trial judge informed the parties that after reviewing the cases and statutes he had decided not to charge on robbery in the second degree as a lesser included offense. Defense counsel raised his concern that he had already told the jury in his closing argument that they could find the defendant guilty of robbery in the second degree. In light of this, the trial court offered to make a curative charge to the jury and also offered to allow defense counsel to address the jury for the purpose of clarifying any confusion regarding the lack of a charge on robbery in the second degree. Defense counsel declined, stating he was concerned that calling attention to it would only further prejudice his client. The trial judge then charged the jury as to robbery in the first degree and robbery in the third degree as a lesser included offense, without charging on robbery in the second degree as a lesser included offense and without referring to the parties’ closing arguments that included robbery in the second degree.

The first part of the defendant’s claim requires us to consider whether the defendant was entitled to the charge of robbery in the second degree as a lesser included offense. The test for determining when the defendant is entitled to a charge on a lesser included offense was set forth in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

“A defendant is entitled to an instruction on a lesser included offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” Id. The state claims that the defendant has not satisfied the first, third and fourth conditions of the Whistnant test. We agree that the defendant did not satisfy the first condition.

A proposed instruction is not appropriate unless it is made in compliance with Practice Book § 854. State v. Hall, 213 Conn. 579, 591, 569 A.2d 534 (1990). Practice Book § 854 provides in pertinent part: “When there are several requests, they shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply. ...” (Emphasis added.)

“The defendant must provide the trial court with the factual and legal basis for the charge before an appellate court can find error in the court’s refusal to give the charge as requested.” (Emphasis added.) State v. Robinson, 14 Conn. App. 40, 45-46, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). In the context of a written request to charge on a lesser included offense, the requirements of § 854 are met only if the proposed request contains (1) a complete statement of the essential facts that would have justified the court in charging in the form requested; State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984); Michaud v. Gagne, 155 Conn. 406, 410, 232 A.2d 326 (1967); Dwyer v. Connecticut Co., 103 Conn. 678, 680, 131 A. 838 (1925); State v. Payne, 31 Conn. App. 370, 377, 625 A.2d 231, cert. denied, 227 Conn. 901, 630 A.2d 73 (1993); (2) the applicable proposition of law clearly and concisely stated; State v. McIntosh, 199 Conn. 155, 159-60, 506 A.2d 104 (1986); and (3) the citation of authority on which the proposition of law is based. Id., 160; State v. Martin, 15 Conn. App. 58, 65, 544 A.2d 231 (1988), aff'd on other grounds, 211 Conn. 389, 559 A.2d 707 (1989); State v. Thurman, 10 Conn. App. 302, 318, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

The defendant submitted a typewritten request to charge on the lesser included offenses of robbery in the second degree and robbery in the third degree. This request to charge failed to comply with the requirements set forth in Practice Book § 854. In its request to charge, the defendant failed to present the trial court with any authority addressing the issue of whether robbery in the second degree under General Statutes § 53a-135 (a) (2) is a lesser included offense of robbery in the first degree under General Statutes § 53a-134 (a) (4).

The legal authority presented by the defendant listed only “Borden and Orland, Connecticut Practice Book, Vol. 5, Criminal Jury Instructions § 13.7-13.9; State v. Whistnant, [supra, 583]; States v. Smith, 185 Conn., 63, 75-79 [441 A.2d 84] (1981).” Our Supreme Court has held that “Whistnant, by itself, does not provide the substantive principles of the criminal law which would justify any particular instruction. In setting the four preconditions to a lesser included offense instruction, Whistnant states no more than a rule of procedure which must be followed before the requested instruction need be given.” State v. McIntosh, supra. Like Whistnant, State v. Smith, supra, 76-77, sets forth the procedure that must be followed to request an instruction on a lesser included offense. Furthermore, Smith deals with criminally negligent homicide, so any reasoning set forth therein would not support the defendant’s request for a charge on the lesser included offense of robbery in the second degree.

The defendant’s citation to 5 Connecticut Practice, D. Borden & L. Orland, Criminal Jury Instructions (1986) §§ 13.7 through 13.9, does not satisfy the requirement of a citation of authority on which to base the request to charge on the lesser included offense of robbery in the second degree. Borden and Orland cite State v. Anderson, 178 Conn. 287, 292-94, 422 A.2d 323 (1979), as addressing the issue of whether second degree robbery is a lesser included offense of first degree robbery. In Anderson, our Supreme Court addressed the question of whether subdivisions (1) and (2) of General Statutes § 53a-135 (a) are lesser offenses included within General Statutes § 53a-134 (a) (2). The Supreme Court determined that they are not lesser included offenses. The Supreme Court did not address the question of whether § 53a-135 (a) (2) is a lesser included offense of § 53a-134 (a) (4).

“While this court does not favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved . . . [t]he ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions, and this cooperation is mandated, at least to the extent of substantial compliance with Practice Book § 852 [now § 854]. The minor burden of cooperation imposed by this section is neither unreasonable nor novel.” (Citations omitted.) State v. McIntosh, supra, 160-61. Having concluded that the defendant failed to satisfy the first condition of Whistnant, we need not consider the second, third or fourth conditions of the Whistnant test.

The defendant further claims that the he was prejudiced by the trial court’s allowing the parties to argue robbery in the second degree to the jury and then failing to charge the jury on robbery in the second degree.

The defendant, citing 46 Am. Jur. 2d 123, Judges § 41 (1969), asserts that we should rely on the proposition that trial courts, in reviewing other trial courts’ rulings, should “ordinarily hesitate to vacate, modify, or depart from an interlocutory order or ruling made in the same case by another judge with equal powers.” The defendant contends that this proposition should be extended to the situation where a judge reconsiders his or her own ruling, especially here, where the defendant alleges he relied on the first ruling to his prejudice. We are not persuaded. To the contrary, we believe that the proper rule is to allow the trial court every opportunity during trial to correct any mistakes made.

Here, the trial court offered to make a curative instruction to the jury and to allow defense counsel to readdress the jury. It is likely that a curative instruction would have cured any error on the part of the trial court. For example, as the state points out in its brief, "the trial court could have informed the jury that for legal reasons unrelated to the merits of the defendant’s factual claims, the trial court had changed an earlier ruling, and would not permit the jury to consider robbery in the second degree, and that the jury was to draw no inferences adverse to the defendant on account of the defense counsel’s argument on robbery in the second degree in reliance on the court’s earlier ruling.” Because "[sjuch curative instructions are entitled to great weight and ordinarily prevent an appellate court from finding that the trial court committed reversible error”; (internal quotation marks omitted) State v. Harris, 28 Conn. App. 474, 481, 612 A.2d 123, cert. denied, 223 Conn. 926, 614 A.2d 828 (1992); we conclude that the defendant’s decision to refuse the curative instruction and the opportunity to readdress the jury, which would likely have cured any error, prevents him from now claiming error by the trial court.

IV

The defendant next claims that the trial court improperly denied the defendant’s motion for judgment of acquittal because the evidence was insufficient to support the defendant’s conviction of larceny in the second degree. We disagree.

To prove larceny in the second degree, the state must establish beyond a reasonable doubt that the defendant took “property, regardless of its nature or value . . . from the person of another . . . .” General Statutes § 53a-123 (a) (3). The defendant cites a number of cases holding that, in order for larceny in the second degree to have occurred, there must have been a trespass to the person of the victim. “In State v. Crowe, 174 Conn. 129, 134, 384 A.2d 340 (1977), our Supreme Court, after noting a divergence among authorities on what constitutes a taking from the person, held: Tn our view, larceny from the person requires an actual trespass to the person of the victim. Because of the trespass to the person, the offense is a serious crime in itself so that the value of the property stolen does not enter into the magnitude of the crime. On the other hand, the removal of property from the presence or control of the victim lacks such a trespass and is insufficient to constitute larceny from the person. We are, therefore, in accord with the rule that larceny from the person is a separate and distinct offense from that of simple larceny.’ In Crowe, the defendants forced a service station attendant, at gunpoint, into a backroom of the station, and then stole a money bag and the attendant’s car. Our Supreme Court reasoned that larceny in the second degree had not occurred because the money and car keys were not taken from the person of the attendant. Likewise, in In re Juvenile Appeal (84-4), 1 Conn. App. 642, 474 A.2d 485 (1984), we held that when a radio was taken from near the victim while the victim was held at knifepoint, there was no taking from the person as required by the statute.” State v. Littles, 31 Conn. App. 47, 51-52, 623 A.2d 500, cert. denied, 227 Conn. 902, 630 A.2d 72 (1993). In State v. Littles, supra, 52, “the victim was walking near a dark parking lot at night when he encountered two men who asked him if he had any money. The men then asked the victim to hand over certain personal items. Although the defendant’s companions did not physically remove the items from the victim’s person, they compelled him, by implicit threat, to hand them over.” We reasoned there that because the victim was wearing the items just prior to his handing them over, the stolen property was taken from the person of the victim, and, therefore, the statutory requirement was met. Id.

The facts here are distinguishable from those in State v. Crowe, supra, In re Juvenile Appeal (84-4), supra, and State v. Littles, supra. Here, the defendant directed the victim to get the money, which was then not on her person, and to give it to the defendant. In Littles, the victim was wearing the items on his person when he first encountered the defendant. We must determine, therefore, whether a trespass to the victim’s person occurs when the money was not on the victim’s person until the defendant ordered the victim to hand the money to him.

In determining that larceny from the person requires an actual trespass to the person of the victim, our Supreme Court in State v. Crowe, supra, relied in part on People v. McElroy, 116 Cal. 583, 48 P. 718 (1897), and Wilder v. State, 30 Ala. App. 107, 1 So. 2d 317 (1941). “The stealing of property from the person has been from an early period under the English statutes treated as a much graver and more heinous offense than ordinary or common theft — partly by reason of the ease with which it could be perpetrated and the difficulty of guarding against it, and partly because of the greater liability of endangering the person or life of the victim.” People v. McElroy, supra, 584. Because our concern is the potential risk of endangering a victim, we see no reason to distinguish between a situation where a perpetrator demands something from the victim that is then on the victim’s person, and the situation where the perpetrator compels the victim to obtain something, which once obtained is on the victim’s person, and in both cases is turned over to the perpetrator. Both scenarios concern the same risk of harm to the victim. In addition, in Wilder v. State, supra, 108, the Alabama Supreme Court held that, without requiring physical touching or harm, “[ujnless the property stolen was actually on or attached to the person by his clothing or otherwise, or was in some manner in his actual physical possession, the offense of larceny from the person has not been committed.” (Emphasis in original.) Accordingly, we conclude that the defendant committed a trespass to the victim’s person when he ordered the victim to get the money and then snatched the money from her hand.

Considering this evidence in the light most favorable to sustaining the verdict, we hold that the trial court properly denied the defendant’s motion for judgment of acquittal because there was sufficient evidence to find the defendant guilty of larceny in the second degree.

V

The defendant’s final claim is that the trial court failed to charge as requested on the count of larceny in the second degree and also failed to charge that larceny in the second degree required a trespass to the person. We disagree.

At the close of evidence, the defendant submitted the following written request to charge: “The defendant is also charged with larceny in the second degree as an alleged violation of § 53a-123 (a) (3) in that it is alleged that the property taken in the robbery was taken from the person of another. In order for the defendant to be found guilty of this offense it must be proven beyond a reasonable doubt that there has been an actual trespass to the person of the victim. A mere showing that there was only a removal of the property from the presence or control of the victims lacks such a trespass and is insufficient to constitute larceny from the person as charged here. Trespass of the person involves harmful or offensive physical contact without the other’s consent.”

The trial court declined to instruct the jury as the defendant requested and, instead, provided its own instruction on larceny in the second degree. The trial court instructed the jury that “[a] person is guilty of larceny in the second degree when he commits larceny . . . and the property, regardless of its value, is taken from the person of another. To take property from the person of another means that the item taken was actually on the body or held by the person or was in some manner attached to the person of the victim.”

“It is well established that when a proper request to charge is filed [pursuant to Practice Book § 852] and the trial court has failed to charge the jury in the exact language of the request, the test is whether the court’s instructions properly covered the substance of the written request. ... A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance. . . . [Our Supreme Court] has often repeated that [a] 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. . . . It is the trial court’s responsibility to instruct the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration under the offenses charged and upon the evidence. . . .” (Citations omitted; internal quotation marks omitted.) State v. Dickerson, 28 Conn. App. 290, 293-94, 612 A.2d 769 (1992). “A claim of error in jury instructions must be reviewed in the context of the charge as a whole.” State v. Gary, 211 Conn. 101, 114, 558 A.2d 654 (1989).

In comparing the defendant’s request to charge with that given by the trial court, it is apparent that the only substantive difference involves the meaning of “taking property from the person of another.” We agree that this requires a trespass to the person. The defendant’s assertion that a “[t]respass [to] the person involves harmful or offensive physical contact without the other’s consent,” however, is not an accurate statement of the law. No physical contact is required. Mere compulsion by implicit threat to hand over the property is sufficient to meet the statutory requirement that the property be taken from the person of another and would, therefore, constitute a trespass of the person. State v. Littles, supra.

Our review of the trial court’s charge on larceny in the second degree reveals that the charge as given was adequate to guide the jury to a correct verdict. The trial court read the language of General Statutes § 53a-123 (a) (3) and further explained what “taking property from the person of another” means in language that accords with our case law. In light of the trial court’s instruction as a whole, we cannot conclude that the trial court improperly charged on larceny in the second degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-134 provides in pertinent part: “(a) 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 or another participant in the crime ... (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 § 53a-123 provides in pertinent part: “(a) A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another

       General Statutes § 53a-135 provides in pertinent part: “(a) A person is guilty of robbery in the second degree when he commits robbery as defined in section 53a-133 and . . . (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.”

       See footnote 1.

       The defendant’s request to charge included the following:
      “A. Pronosed Instructions
      “1. Robbery in the Second Degree
      “Robbery in the second degree as relevant as a lesser included offense in the instant matter is found in our statutes at 53a-135 (a) (2) of the Connecticut General Statutes and provides that if in the course of the commission of the crime or the immediate flight therefrom the perpetrator displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument he may be found guilty of the crime of robbery in the second degree. Deadly weapon means [text of § 53a-3 (6)]. Dangerous instrument means [text of § 53a-3 (7) as relevant]. If you find that the defendant has been proven guilty beyond a reasonable doubt of each and every element of this crime, then you should find him guilty. If you find that the defendant has not been proven guilty beyond a reasonable doubt of each and every element of this crime, then you must find him not guilty of robbery in the second degree.
      “2. Robbery in the Third Degree
      “B. Legal Authority
      “Borden and Orland, Connecticut Practice Book, Vol. 5, Criminal Jury Instructions § 13.7-13.9; State v. Whistnant, [179 Conn. 576, 583, 427 A.2d 414 (1980)]; State v. Smith, 185 Conn. 63, 75-79 [441 A.2d 84] (1981).
      “C. Factual Basis
      “The testimony from both clerk witnesses was that the perpetrator carried with him a plastic shopping bag which they could not see through and that at the onset of the robbery the perpetrator placed this bag on the store counter and demanded money. While both clerks stated that they thought the bag contained a firearm neither clerk saw any portion of the object they believed was contained inside the bag and both clerks testified that at no time did the perpetrator verbally threaten the use of a firearm or any other weapon that may have been contained inside the bag, and that at no time did the perpetrator display or discharge the firearm or other weapon that may have been contained inside the bag.”

       Although we are not required to consider the second, third or fourth conditions of the Whistnant test in order .to avoid the appearance that we

        “favor unyielding adherence to rules of procedure where the interests of justice are thereby disserved”; State v. McIntosh, 199 Conn. 155, 160, 506 A.2d 104 (1986); we note that in addition to the failure to meet the first condition, the defendant has also failed to meet the fourth condition. The difference between robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and robbery in the second degree in violation of General Statutes § 53a-135 (a) (2) is that to convict the defendant of robbery in the first degree he must have displayed or threatened the use of what he represented by his words or conduct to be a firearm, while robbery in the second degree requires only the display or threatened use of what the defendant represents by his words or conduct to be a deadly weapon or dangerous instrument. Our review of the evidence presented at trial reveals that both of the state’s witnesses testified that they thought the defendant held a gun concealed in the bag. There was no evidence presented that contradicted the testimony of the witnesses that they believed, based on the defendant’s actions, that the object the defendant displayed or threatened the use of was a gun. The defendant cross-examined the two state’s witnesses and asked if the bag could have contained something other than a gun. They responded that it was possible, but that response does not rise to the level of placing the issue sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense (display or threatened use of a firearm) but guilty of the lesser (display or threatened use of a deadly weapon or dangerous instrument). Thus, the defendant failed to satisfy the fourth condition of the Whistnant test.
      In view of our conclusion that the defendant’s request to charge failed to conform to the requirements of Practice Book § 854 and State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980), we need not consider the merits of his claim that robbery in the second degree is a lesser included offense of robbery in the first degree. See State v. Payne, 31 Conn. App. 370, 376-77, 625 A.2d 231 (1993); State v. Payne, 14 Conn. App. 169, 171, 540 A.2d 87 (1988).

       The standard of review for a claim of insufficient evidence is set forth in part II.

       See footnote 2.


source: Caselaw Access Project

author: Schaller, J.

license: Public Domain

text:
    Peter Plati v. United Parcel Service
    (11678)
    Dupont, C. J., O’Connell and Schaller, Js.
    Argued November 4, 1993
    decision released January 25, 1994

      Judy D. Rintoul, for the appellant (plaintiff).

      Kevin D. O’Leary, with whom, on the brief, were William H. Narwold and Kathleen M. Endrelunas, for the appellee (defendant).
   Schaller, J.

The plaintiff, Peter Plati, appeals from the decision of the workers’ compensation commissioner dismissing his complaint, brought pursuant to General Statutes § 31-290a (a), in which he alleged that the defendant, United Parcel Service, had illegally discharged him. The plaintiff filed his complaint with the workers’ compensation commission pursuant to General Statutes § 31-290a (b) (2), which provides a right of appeal to this court from the decision of the commissioner. The issue on appeal is whether the commissioner improperly determined, pursuant to § 31-290a, that the plaintiff failed to prove a prima facie case of discriminatory discharge. Because we conclude that the plaintiff has failed to present an adequate record for review of this claim, we affirm the decision of the commissioner.

The following facts are relevant to this appeal. The plaintiff began work as a driver for the defendant in 1973. The plaintiff alleged that between March, 1985, and September, 1988, he had suffered a total of nine work related injuries. In an effort to settle these claims, the parties entered into a “Stipulation for Full and Final Settlement” in January, 1990. This voluntary agreement required approval by the workers’ compensation commissioner, pursuant to General Statutes § 31-296.

A separate “Resignation Agreement” tendered by the plaintiff in January, 1990, was not presented to the commissioner to be reviewed with the stipulation. The resignation agreement stated that the plaintiff “hereby promises to resign his employment . . . and further promises not to seek re-employment .... These promises are made in consideration of $1.00 . . . and other good and valuable consideration. This agreement is to take effect solely upon the approval of the attached [stipulation] by the Commissioner of the First District of the Connecticut Workers’ Compensation System.” When the commissioner approved the stipulation on March 5, 1990, the resignation agreement became effective.

In January, 1992, the plaintiff filed a complaint with the workers’ compensation commission, alleging that the resignation agreement tendered by the plaintiff violated § 31-290a, and that the employer improperly failed to present the resignation agreement to the commissioner reviewing the stipulation. The case was presented before a commissioner on August 15, 1992. Prior to testimony, the defendant moved that the complaint be dismissed, but the commissioner reserved judgment. The plaintiff’s case consisted solely of the plaintiff’s testimony. The plaintiff testified both that he willingly resigned and that he did not want to resign. When the plaintiff rested, the commissioner granted the defendant’s motion to dismiss the complaint, and stated “even if I believe and draw every inference [the plaintiff] want[s] me to draw ... I can’t hold the employer liable under 290a because [the plaintiff] entered into an agreement that he didn’t want to enter into, and [because the plaintiff] tendered a resignation he didn’t want tendered.”

At the close of trial, the plaintiff orally requested that the commissioner articulate his findings of fact and conclusions of law. The commissioner denied these requests. Further, the commissioner neither issued any written findings for the basis of his decision, nor, as required by § 31-290a (b) (2), issued a written copy of his decision to the parties. The plaintiff did not make a written motion for articulation of the commissioner’s decision.

The appellant has the responsibility to provide this court with an adequate record for review. Practice Book § 4061; DeMilo v. West Haven, 189 Conn. 671, 681, 458 A.2d 362 (1983); Holmes v. Holmes, 32 Conn. App. 317, 319, 629 A.2d 1137, cert. denied, 228 Conn. 902, 634 A.2d 295 (1993); Connecticut Bank & Trust Co., N.A. v. Linsky, 32 Conn. App. 13, 15, 627 A.2d 956 (1993); Augeri v. Planning & Zoning Commission, 24 Conn. App. 172, 178, 586 A.2d 635, cert. denied, 218 Conn. 904, 588 A.2d 1383 (1991). “This court recently noted that we cannot render a decision without first having ‘specific findings of fact to determine the basis of the court’s ruling.’ State v. Rios, 30 Conn. App. 712, 715, 622 A.2d 618 (1993).” Gelormino v. Blaustein, 31 Conn. App. 750, 751, 626 A.2d 1325 (1993). The commissioner failed to present, orally or in writing, the findings of fact that led to his conclusion that the case should be dismissed.

Pursuant to Practice Book § 4051, a party can move in writing that a trial court articulate its findings. If a trial court denies a party’s motion for articulation, that party may move that this court review the trial court’s denial of the motion and, if appropriate, require that the trial court articulate its findings. Practice Book § 4054.

The plaintiff claimed at oral argument that § 31-290a (b) (2), by providing for a direct appeal from the decision of the commissioner to this court, precluded him from filing a written motion for articulation and, if that motion were denied, from seeking a review of that denial. In this instance, the plaintiff had the choice of filing a complaint with the workers’ compensation commission or bringing an action in the Superior Court. Because these proceedings are comparable, the commissioner acted, in effect, as the trial court in hearing the plaintiff’s claims. For example, pursuant to General Statutes § 31-290a (b) (1), the trial court makes findings of fact and conclusions of law, and, pursuant to § 31-290a (b) (2), “[t]he workers’ compensation commissioner has the power and the duty to determine the facts, and we will not review facts reasonably found by the commissioner. The commissioner’s conclusions that are drawn from those facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Besade v. Interstate Security Services, 212 Conn. 441, 448, 562 A.2d 1086 (1989); Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).” Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 364, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991).

Under normal circumstances, this court will not remand a case to correct a deficiency that the appellant should have remedied. Carpenter v. Carpenter, 188 Conn. 736, 739 n.2, 453 A.2d 1151 (1982); Scherr v. Scherr, 183 Conn. 366, 368, 439 A.2d 375 (1981); Connecticut Bank & Trust Co., N.A. v. Linsky, supra, 15; North Park Mortgage Services, Inc. v. Pinette, 27 Conn. App. 628, 632, 608 A.2d 714 (1992). The plaintiff elected to bring his complaint to the workers’ compensation commission rather than to proceed in the Superior Court. Under these circumstances, the plaintiff was not absolved of the requirement of filing a motion for articulation and seeking appropriate review in this court, where such review was necessary to create an adequate record for our review of his claim. “Without an adequate record on which to review the findings of the trial court, this court must assume that the trial court acted properly. Jacobsen v. Jacobsen, 177 Conn. 259, 267, 413 A.2d 854 (1979); Johnson v. Newell, 160 Conn. 269, 277, 278 A.2d 776 (1971); State v. James L., 26 Conn. App. 81, 86, 598 A.2d 663 (1991).” Connecticut Bank & Trust Co., N.A. v. Linsky, supra, 16. Likewise, because there is no adequate record from which to review the decision of the commissioner, we must assume that the commissioner acted properly.

The decision of the commissioner is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-290a (a) provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.”

       General Statutes § 31-290a (b) provides the following alternative procedures: “Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. . . . or (2) file a complaint with the chairman of the workers’ compensation commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint .... After the hearing, the commissioner shall send each party a written copy of his decision. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. . . . Any party aggrieved by the decision of the commissioner may appeal the decision to the appellate court.”

       General Statutes § 31-296 provides in pertinent part: “If an employer and an injured employee . . . reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based; and, if such commissioner finds such agreement to conform to the provisions of this chapter in every regard, he shall so approve it. . . .”

       Practice Book § 4051 provides in pertinent part: “An original and three copies of a motion for rectification or articulation shall be filed with the appellate clerk and forwarded by such clerk to the trial judge. The trial judge shall file the ruling on the motion with the appellate clerk. . . .”

       Practice Book § 4054 provides in pertinent part: “Any party aggrieved by the action of the trial judge as regards rectification of the appeal or articulation under Sec. 4051 may, within ten days of the issuance of notice of the order sought to be reviewed, make a written motion for review to the court, to be filed with the appellate clerk, and the court may, upon such a motion, direct any action it deems proper. . . .”


author: Heiman, J.

text:
    Elliot Borent v. State of Connecticut, Department of Transportation
    (12042)
    O’Connell, Heiman and Speak, Js.

      Argued December 6, 1993
    decision released January 25, 1994

      Loida John, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellant (defendant).

      Brian W. Prucker, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals, pursuant to General Statutes (Rev. to 1991) § Sl-SOlb, from a decision of the compensation review division of the workers’ compensation commission reversing a decision by the compensation commissioner for the second district denying the plaintiff’s motion to preclude the defendant from raising a defense. On appeal, the defendant claims that the review division improperly found a date of injury different from that found by the commissioner. We affirm the decision of the compensation review division.

The following facts are necessary for a proper resolution of this appeal. On October 13,1988, the plaintiff filed a notice of claim with the workers’ compensation commission alleging repetitive injury “to binaural ears” that occurred while employed by the defendant on August 2, 1988. Notice was sent to the commissioner and to the employer. On September 26,1990, the plaintiff filed a motion to preclude the defendant from contesting the compensability of the claim because the defendant failed to disclaim liability to pay the claim within twenty days of receiving the notice of claim from the plaintiff. See General Statutes (Rev. to 1991) § 31-297 (b). On September 16,1991, the commissioner denied the motion to preclude. The commissioner found that the defendant had paid medical bills for hearing loss related problems on January 15 and January 24, 1987. The commissioner further found that the “latest time that [the plaintiff’s] injury could have occurred was January 15,1987.” On the basis of this date of injury, the notice of claim dated October 13, 1988, was untimely and invalid. See General Statutes (Rev. to 1991) § 31-294 (a). The commissioner further held that since a plaintiff cannot prevail on a motion to preclude a defense to an invalid claim, the motion to preclude must have been denied. Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 281, 535 A.2d 1321, cert. denied, 207 Conn. 805, 540 A.2d 373 (1988).

The plaintiff appealed the commissioner’s finding to the compensation review division on September 20, 1991, pursuant to General Statutes (Rev. to 1991) § 31-301 (a). The review division reversed the finding by the commissioner that the date of injury was January 15, 1987. The review division stated that “where the injury claimed, as in many hearing loss cases, results from repetitive trauma we have held the date of injury to be the last date of exposure to the incidents of repetitive trauma, i.e., the last day worked.” The review division further found that the plaintiff worked after the January, 1987 injury and was working on August 2, 1988. Therefore, the review division found that the notice of claim was filed within the proper time frame and the motion to preclude should have been granted. The defendant appealed from this judgment.

The review division may not disturb “[t]he conclusions drawn by [the commissioner] from the facts found . . . unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990). “[T]he conclusions drawn by the commissioner cannot stand when they result from an incorrect application of the law.” Kinney v. State, 213 Conn. 54, 59, 566 A.2d 670 (1989). “Our scope of review of the actions of the review division is similarly limited. . . . The decision of the review division must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Citation omitted.) DeBarros v. Singleton, supra; see Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991).

“We accord great deference to the construction given to § 31-294 by the commissioner and the review division because they are both charged with its enforcement. Police Department v. State Board of Labor Relations, 225 Conn. 297, 300, 602 A.2d 1005 (1993); Board of Education v. State Board of Labor Relations, 217 Conn. 110, 119-20, 584 A.2d 1172 (1991).” Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993). The review division and our court have considered the type of injury alleged in the notice of claim to be accurate for the purpose of reviewing the timeliness of the claim. See Pelletier v. Caron Pipe Jacking, Inc., supra; Dorsett v. General Dynamics Corp., 8 Conn. Workers’ Comp. Rev. Op. 77, aff’d, 23 Conn. App. 827, 584 A.2d 484 (1990), cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). The review division has repeatedly held that, as a matter of law, the date of injury of a repetitive trauma is the last day of exposure, which is usually the last date of employment. See Carvalko v. Bassick Co., 9 Conn. Workers’ Comp. Rev. Op. 258 (1991); Dorsett v. General Dynamics Corp., supra; Delos v. United Illuminating, 7 Conn. Workers’ Comp. Rev. Op. 111 (1989); Pich v. Pratt & Whitney, 4 Conn. Workers’ Comp. Rev. Op. 163 (1988). Our courts have endorsed this construction. Crochiere v. Board of Education, supra; Dorsett v. General Dynamics Corp., supra.

The commissioner found that the plaintiff was employed by the defendant on August 2,1988, and the notice of claim alleged a repetitive trauma. Since the plaintiff was exposed to the incidents of the trauma on August 2,1988, an injury date of August 2,1988, must be found. Therefore, the motion to preclude should have been granted by the commissioner because the filing of the claim did not violate the time limitation set forth in General Statutes (Rev. to 1991) § 31-294 (a).

The defendant also claims that the review division lacked the ability to determine a different date of injury because the plaintiffs motion to correct the commissioner’s finding was not proper. The defendant asserts that the plaintiff requested only an additional finding that the injury occurred on August 2, 1988, without requesting a deletion of the finding of injury on January 15, 1987. Further, the defendant asserts that the plaintiff failed to present evidence properly to the commissioner in support of the motion to correct.

The record fails to indicate that these claims were raised before the review division. “We have generally taken the position that we do not sit de novo on civil cases for arguments that have not been raised in the agency whose action we are reviewing.” Ancona v. Norwalk, 217 Conn. 50, 54 n.6, 584 A.2d 454 (1991). Accordingly, we decline to address these issues.

The decision of the compensation review division of the workers’ compensation commission is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1991) § 31-301b provides: “Any party aggrieved by the decision of the compensation review division upon any question or questions of law arising in the proceeding may appeal the decision of the compensation review division to the appellate court.”

       General Statutes (Rev. to 1991) § 31-297 provides in pertinent part: “(b) Except as provided in subsection (c) of this section, whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners .... If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury . . . and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability . . . .”

       General Statutes (Rev. to 1991) § 33-294 provides in pertinent part: “(a) Any employee who has sustained an injury in the course of his employment shall forthwith notify his employer, or some person representing his employer, of such injury; and, on his failure to give such notice, the commissioner may reduce the award of compensation proportionately to any prejudice which he finds the employer has sustained by reason of such failure .... No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury . . . .”

       General Statutes (Rev. to 1991) § 31-301 provides in pertinent part: “(a) At any time within ten days . . . after a decision of the commissioner upon a motion . . . either party may appeal therefrom to the compensation review division .... The compensation review division shall hear the appeal on the record of the hearing before the commissioner . . . .”

       The commissioner stated: “On October 13, 1988 and for many years prior thereto, [the plaintiff] worked for the [defendant].”


author: Spear, J.

text:
    Daryl O’Rourke v. Commissioner of Motor Vehicles
    (12118)
    O’Connell, Heiman and Spear, Js.
    Argued December 6, 1993
    decision released February 1, 1994

      Patrick B. Crehan, for the appellant (plaintiff).

      Robert L. Marconi, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Spear, J.

The plaintiff, Daryl O’Rourke, appeals from the trial court’s judgment dismissing his appeal from the order issued by the defendant commissioner of motor vehicles suspending the plaintiffs driver’s license for one year pursuant to General Statutes § 14-227b. The plaintiff claims that the trial court improperly (1) applied the clearly erroneous standard in reviewing the defendant’s order, and (2) concluded that there was sufficient evidence in the record to find that the plaintiff was operating the motor vehicle. We affirm the judgment of the trial court.

The following facts are pertinent to our resolution of this appeal, which challenges the defendant’s finding of operation of the motor vehicle. On February 27, 1992, at approximately 2:25 a.m., Patrolman Brian Jones of the Redding police department discovered the plaintiff’s vehicle on Route 107 in Redding. According to the police report filed by Jones, the plaintiff’s vehicle had been involved in a major accident. When Jones approached the stationary vehicle, he found the plaintiff in the operator’s seat with his seat belt on. Jones smelled alcohol on the plaintiff’s breath and clothes and observed that the plaintiff was very nervous and overly polite. The plaintiff told Jones that he had been arrested one year earlier for driving while intoxicated. Jones removed the plaintiff from the vehicle and administered field sobriety tests to him, which he failed. On the basis of his observations, Jones arrested the plaintiff for operating a vehicle while under the influence of intoxicating liquor or drugs or both in violation of General Statutes § 14-227a.

On March 6, 1992, the defendant notified the plaintiff that his driver’s license was to be suspended for one year, effective April 2,1992, pursuant to General Statutes § 14-227b (d). The plaintiff then requested and was subsequently given an administrative hearing on the proposed license suspension pursuant to General Statutes § 14-227b (d) and (f). On March 23, 1992, a hearing was held before Mark Gutis, a department of motor vehicles hearing officer. The only evidence presented at the hearing was an “Officer’s DWI Arrest and Alcohol Test Refusal or Failure Report” (A-44 form), signed by Jones. Neither the plaintiff nor Jones testified at the hearing.

Gutis issued his decision on March 24,1992, finding that (1) the police officer had probable cause to arrest the plaintiff for violating General Statutes § 14-227a, (2) the plaintiff was placed under arrest, (3) the plaintiff submitted to the intoximeter tests, which indicated that his blood alcohol content was 0.1 percent or greater at the time of the offense, and (4) the plaintiff was operating the motor vehicle at the time of the accident. See General Statutes § 14-227b (f). On the basis of these findings, the defendant suspended the plaintiffs driver’s license for one year pursuant to General Statutes § 14-227b (h) (2).

The plaintiff appealed his suspension to the Superior Court, claiming that there was insufficient evidence to support the hearing officer’s finding that the plaintiff was operating the vehicle. The court dismissed the plaintiff’s appeal finding that the evidence in the record was sufficient for the hearing officer to determine that the plaintiff had been operating the vehicle. This appeal followed.

I

The plaintiff first claims that the trial court improperly applied the clearly erroneous standard in reviewing the defendant’s finding that the plaintiff was operating the car. The plaintiff contends that the determination of operation of a motor vehicle is a question of law because it involves the application, interpretation and construction of § 14-227b. We disagree.

Proof of operation is a factual determination. See, e.g., State v. Hanusiak, 4 Conn. Cir. Ct. 34, 46, 225 A.2d 208 (1966) (§ 14-227b contemplates that the trier of facts shall make the finding of operation). “[A]n agency’s factual and discretionary determinations are to be accorded considerable weight by the courts.” Lieberman v. State Board of Labor Relations, 216 Conn. 253, 262, 579 A.2d 505 (1990). The factual findings of the commissioner of motor vehicles must be affirmed by the trial court unless they are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” General Statutes § 4-183 (j) (5). The trial court in this case applied the proper standard of review.

II

The plaintiff next claims that the trial court improperly concluded there was sufficient evidence in the record to determine that he was operating the vehicle. We disagree.

We note at the outset that “judicial review of the commissioner’s action is governed by the Uniform Administrative Procedure Act (General Statutes . . . §§ 4-166 through 4-189), and the scope of that review is very restricted. ...” (Internal quotation marks omitted.) Buckley v. Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986), quoting Lawrence v. Kozlowski, 171 Conn. 705, 707-708, 372 A.2d 110 (1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2930, 53 L. Ed. 2d 1066 (1977). “In cases involving administrative appeals it is not the function of this court, nor was it the function of the trial court, to retry the case or to substitute its judgment for that of the administrative agency.” Madow v. Muzio, 176 Conn. 374, 376, 407 A.2d 997 (1978); C & H Enterprises, Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11, 12, 404 A.2d 864 (1978); DiBenedetto v. Commissioner of Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840 (1975); see General Statutes § 4-183 (j).

“In order to prevail in this appeal, the plaintiff bears the burden of proving that substantial rights possessed by [him] have been prejudiced because the decision to suspend [his] right to operate a vehicle in this state was ‘clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.’ ” Schallenkamp v. DelPonte, 29 Conn. App. 576, 580, 616 A.2d 1157 (1992), cert. granted on other grounds, 224 Conn. 928, 619 A.2d 851 (1993); Lawrence v. Kozlowski, supra, 713-14; see General Statutes § 4-183 (j) (5). Our review of the defendant’s decision requires us to determine whether there is substantial evidence in the administrative record to support the defendant’s findings of basic fact and whether the conclusion drawn from those facts is reasonable. Schallenkamp v. DelPonte, supra, 580-81; see also Connecticut Light & Power Co. v. Department of Public Utility Control, 216 Conn. 627, 639, 583 A.2d 906 (1990). “Substantial evidence exists if the administrative record affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” (Internal quotation marks omitted.) Connecticut Light & Power Co. v. Department of Public Utility Control, supra, 639-40; see also Schallenkamp v. DelPonte, supra, 581; Marshall v. DelPonte, 27 Conn. App. 346, 352, 606 A.2d 716 (1992). If the defendant’s determination to suspend the plaintiff’s license pursuant to § 14-227b is supported by substantial evidence in the record, that determination must be sustained. Schallenkamp v. DelPonte, supra; Clark v. Muzio, 40 Conn. Sup. 512, 514, 516 A.2d 160 (1986), aff’d, 14 Conn. App. 212, 540 A.2d 1063, cert. denied, 208 Conn. 809, 545 A.2d 1105 (1988).

The plaintiff claims that there was not sufficient evidence in the record for the defendant to determine that he was operating the vehicle. To support his claim, the plaintiff relies on State v. DeCoster, 147 Conn. 502, 162 A.2d 704 (1960). DeCoster involved a criminal prosecution for operating a vehicle while under the influence of intoxicating liquor in violation of General Statutes (1958 Rev.) § 14-227 (now § 14-227a). Police found the defendant in DeCoster intoxicated and slumped over the steering wheel of his car with the key in the ignition and the motor off. Id., 504. The car was damaged on the right side and both tires on that side were flat; four signs directing traffic to “Go Right” at a nearby rotary traffic circle had been knocked down. Id. No one had seen the defendant operating his car and there was no evidence to show how long it had been stationary.

The DeCoster court found that the state had failed to demonstrate the critical nexus between intoxication and operation; the state could not show how much time had transpired between the moment the defendant last operated his car and the officer’s discovery of the defendant sitting in it. Id., 505. Thus, the court held that there was insufficient evidence to find beyond a reasonable doubt that the defendant had operated his car while under the influence of intoxicating liquor. Id.

The plaintiff’s reliance on DeCoster is misplaced. This case, unlike DeCoster, involves an administrative license revocation proceeding under § 14-227b, not a criminal prosecution under General Statutes § 14-227a. “In a criminal case, the state must prove each element of the crime charged beyond a reasonable doubt. . . . In an administrative action, however, the agency need only produce probative and reliable evidence to ensure that the proceedings are fundamentally fair.” (Citations omitted.) Marshall v. DelPonte, supra, 351. Thus, a hearing officer’s decision to revoke a drivers license is not subject to the “far higher” burden of proof that is required for a criminal conviction of driving under the influence. Id.

The DeCoster decision is also distinguishable from the present case on its facts. In this case, unlike in DeCoster, the plaintiff was found strapped into the driver’s seat by his seat belt. The defendant could reasonably have inferred from this fact that the plaintiff had been operating the vehicle at the time of the accident that left his vehicle immobilized and in need of a tow. In addition, the plaintiff admitted to police that he had been arrested a year before for driving while intoxicated. This statement, coupled with the plaintiff’s nervous demeanor, indicated a “consciousness of guilt,” that the defendant could consider in determining whether the plaintiff had been operating the vehicle. See, e.g., State v. Burak, 201 Conn. 517, 533, 518 A.2d 639 (1986). Furthermore, the plaintiff’s attorney stated that the plaintiff lost his eyeglasses during the accident, one more fact to support the inference that the plaintiff, the sole occupant of the vehicle, was the operator at the time of the accident.

The record contains substantial evidence supporting the defendant’s finding that the plaintiff had operated the vehicle. Thus, the trial court was correct in holding that the defendant’s finding was not clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227b provides in pertinent part: “(a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....
      “(b) If any such person, having been placed under arrest for . . . operating a motor vehicle while under the influence of intoxicating liquor or any drug or both . . . and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of this section if he . . . submits to such test and the results of such test indicate that at the time of the alleged offense the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight .... The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he . . . submitted to such test and the results of such test indicated that at the time of the alleged offense the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.
      “(c) If the person arrested . . . submits to such test or analysis and the results of such test or analysis indicate that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight, the police officer . . . shall immediately revoke and take possession of the motor vehicle operator’s license . . . for a twenty-four-hour period and shall issue a temporary operator’s license ... to such person .... The police officer shall prepare a written report of the incident .... The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for . . . operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that . . . such person submitted to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.
      “(d) Upon receipt of such report, the commissioner of motor vehicles shall suspend any license ... of such person .... Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. . . .
      “(f) If such person contacts the department to schedule a hearing, the department shall assign a date, time and place for the hearing, which date shall be prior to the effective date of the suspension. Upon a showing of good cause, the commissioner may grant one continuance for a period not to exceed ten days. If a continuance is granted, the commissioner shall extend the validity of the temporary operator’s license or nonresident operating privilege issued pursuant to subsection (c) of this section for a period not to exceed the period of such continuance. The hearing shall be limited to a determination of the following issues: (1) Did the police officer have probable cause to arrest the person for . . . operating a motor vehicle while under the influence of intoxicating liquor or drug or both ... (2) was such person placed under arrest; (3) did such person . .. submit to such test or analysis and the results of such test or analysis indicated that at the time of the alleged offense the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight; and (4) was such person operating the motor vehicle. . . .
      “(g) If, after such hearing, the commissioner finds on any one of the said issues in the negative, the commissioner shall reinstate such license or operating privilege. If, after such hearing, the commissioner does not find on any one of the said issues in the negative or if such person fails to appear at such hearing, the commissioner shall affirm the suspension contained in the suspension notice for the appropriate period specified in subsection (h) of this section. . . .
      “(h) The commissioner shall suspend the operator’s license .... and revoke the temporary operator’s license . . . issued pursuant to subsection (c) of this section ... for a period of . . . (2) one year if such person has previously had his operator’s license . . . suspended under this section . . . .”

       See footnote 1.

       The A-44 form sets forth, inter alia, the circumstances surrounding Jones’ discovery of the plaintiff’s vehicle, his observations of the plaintiff, the time of the discovery, the plaintiff’s performance on the field sobriety tests, the plaintiff’s advisement of rights and consent to the intoximeter tests, the time and results of the intoximeter tests, and the fact that the plaintiff’s vehicle was towed from the scene.


author: Lavery, J.

text:
    State of Connecticut v. John Paul
    (10652)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued December 13, 1993
    decision released February 1, 1994

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Jack W. Fischer, assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and Maureen V. Ornousky, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant, John Paul, appeals from the judgment of conviction of assault of a peace officer in violation of General Statutes § 53a-167c (a) (l) and interference with an officer in violation of General Statutes § 53a-167a (a). The defendant claims that the trial judge’s absence during voir dire constituted reversible error. We reverse the judgment of the trial court.

The jury could reasonably have found the following facts. During an investigation of the Private Club in Stamford, Richard Conklin and Larry Eisenstein, Stamford police officers, found several small bags of heroin under the carpet near where the defendant was sitting. Conklin and the defendant were acquainted before this incident. Conklin informed the defendant, who was wearing a leg cast and using crutches, that he was being arrested for narcotics violations.

Conklin’s search of the defendant produced a wad of money, which the defendant grabbed and refused to yield. Despite the officer’s explanation that the money was evidence and that the defendant would receive a receipt, the defendant refused to release it. A struggle ensued, during which the defendant hit Conklin with one of his crutches and kicked Eisenstein with his uninjured leg. After a third officer arrived, the defendant was subdued and handcuffed.

The defendant elected to have a jury trial. During voir dire, the judge retired to his chambers and permitted jury selection to continue in his absence. “[T]he trial judge’s absence from the courtroom during voir dire in a criminal trial is per se reversible error.” State v. Patterson, 31 Conn. App. 278, 303, 624 A.2d 1146, cert. granted, 227 Conn. 901, 630 A.2d 72 (1993). Thus, this case is controlled by our decision in Patterson.

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

In this opinion the other judges concurred.

       General Statutes § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer ... is acting in the performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       General Statutes § 53a-167a (a) provides: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer ... in the performance of his duties.”

       The defendant also raises other claims on appeal. We need not address them, however, as our decision requires a new trial.

       The defendant was acquitted of possession of heroin with intent to sell in violation of General Statutes § 21a-278 (b).


author: Dupont, C. J.

text:
    Stephen Grossomanides et al. v. Town of Wethersfield
    (12048)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued December 9, 1993
    decision released February 1, 1994

      Lisa A. Zaccardelli, for the appellant (substitute plaintiff).

      Karen P. Blado, with whom, on the brief, was Robert M. Decreseenzo, for the appellee (defendant).
   Dupont, C. J.

The plaintiff John Anagnos appeals from the judgment of the trial court upholding the decision of the board of tax review for the town of Wethersfield regarding the plaintiffs tax assessment. The plaintiff is the owner of real property at 912 Silas Deane Highway in Wethersfield, on which stands a building that he leases out as commercial office space. Pursuant to its decennial revaluation, the town of Wethersfield valued the property at $3,001,500 as of October 1,1989. At the plaintiffs request, the board of tax review reviewed the assessment and reduced it to $2,892,000. The plaintiff then appealed to the trial court, which upheld the board’s determination. The plaintiff now appeals that judgment to this court, claiming that the trial court improperly concluded that the report of the plaintiff’s appraiser was irrelevant to the issue of the property’s fair market value.

The trial court stated in its memorandum of decision that “[t]he plaintiff's] expert appraisal report is given no weight because it valued the lease fee of the subject property and is therefore irrelevant to the issue of the fair market value for purposes of a municipal tax appeal.” The relevancy of evidence is determined on a case by case basis within the discretion of the trial court. The general rule is that evidence is relevant if it has a tendency “to establish a fact in issue or to corroborate other direct evidence in the case.” (Internal quotation marks omitted.) Lombardi v. Groton, 26 Conn. App. 157, 163, 599 A.2d 388 (1991), cert. denied, 221 Conn. 908, 600 A.2d 1361 (1992), quoting Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 82, 291 A.2d 715 (1971); State v. Willis, 221 Conn. 518, 522, 605 A.2d 1359 (1992). This court requires a clear showing of abuse of discretion to set aside findings on evidentiary matters. Lombardi v. Groton, supra.

The trial court is vested with broad discretion in municipal tax appeals in determining fair market value, and “has the right to accept so much of the expert testimony and the recognized appraisal methods which are employed as it finds applicable.” John F. Epina Realty, Inc. v. Space Realty, Inc., 194 Conn. 71, 84, 480 A.2d 499 (1984). “The exercise of this right would be reviewable only if it were apparent that the [trial court] misapplied or overlooked, or gave a wrong or improper effect to, any testimony or consideration which it [has a] duty to regard. . . .” (Citations omitted; internal quotation marks omitted.) Id., quoting Federated Department Stores, Inc. v. Board of Tax Review, supra, 86.

Upon our review of the appraisal report of the plaintiffs appraiser, we conclude that the trial court’s determination that the report was “irrelevant” and should be given no weight was improper. Although the appraiser’s use of the term “lease fee title” was unusual and, perhaps, semantically misleading, the report clearly defined that term as meaning nothing more than “ownership of the land, improvements, and all of the rights normally acquired by ownership.” Semantics aside, there is no difference between the definition of “lease fee title” as used in the report and defined therein and the definition of a fee simple estate, which the report defined as “[a]b solute ownership unencumbered by any other interest or estate; subject only to the limitations of eminent domain, escheat, police power, and taxation.” Both the plaintiffs and the defendant’s appraisers correctly valued the same ownership interest in the subject property. See Second Stone Ridge Cooperative Corp. v. Bridgeport, 220 Conn. 335, 342-44, 597 A.2d 326 (1991).

Contrary to the defendant’s assertions, the appraisal report of the plaintiff’s expert did not violate General Statutes § 12-63b (b) by using the value of the actual leases of the office building to determine the net operating income of the subject property. Although he did perform a calculation using the actual income from existing leases, he did not use that calculation in reaching his ultimate determination of net operating income. In fact, the appraiser used a net operating income figure based on “comparable rentals” in calculating the value of the property according to the “income approach,” which is exactly what he should have done.

The plaintiffs appeal from the board’s decision required the trial court to perform a double function. Gorin’s, Inc. v. Board of Tax Review, 178 Conn. 606, 608, 424 A.2d 282 (1979). Initially, it was the court’s duty to determine whether “the action of the board will result in the payment of an unjust and, therefore, illegal tax . . . .” Id. If such a finding was made, the court could then reduce the assessment in accordance with its own determination of the value of the property made on the basis of the evidence produced at trial. Stamford Apartments Co. v. Stamford, 203 Conn. 586, 588, 525 A.2d 1327 (1987); Gorin’s, Inc. v. Board of Tax Review, supra, 608. “The burden, in the first instance, is upon the plaintiff to show that he has, in fact, been aggrieved by the action of the board in that his property has been overassessed.” Gorin’s, Inc. v. Board of Tax Review, supra.

In this case, the evidence that the plaintiff produced to satisfy his burden of showing aggrievement consisted primarily of the report and the testimony of his expert appraiser. The trial court improperly declared the plaintiff’s appraisal report as irrelevant, and therefore gave it no weight. The trial court’s memorandum of decision also reveals that in evaluating the testimony of the witnesses, the court gave “greater weight to the testimony of the defendant’s expert witness . . . because he correctly applied the income and sales comparison approaches to value to determine the fair market value for the fee simple estate of the subject property on October 1, 1989.”

This paragraph of the memorandum of decision implies that the trial court found that the plaintiff’s appraiser had incorrectly applied those methods to determine the property’s fair market value, and that the court valued the testimony of the defendant’s appraisers over that of the plaintiff’s appraiser, not because it found the defendant’s appraisers more credible, but because it discounted the testimony of the plaintiff’s appraiser for the same improper reason it deemed his appraisal report irrelevant.

In Federated Department Stores, Inc. v. Board of Tax Review, supra, a plaintiff constructed a department store in Stamford and sold it to a coplaintiff under a sale and leaseback arrangement. At trial, the court determined that because the leaseback agreement was a “security-type” transaction, the lease between the parties was irrelevant to a determination of the property’s value because it did not reflect the property’s fair rental income. The court then excluded the testimony of the plaintiff’s witnesses as to their valuation of the building because the “capitalization of income” valuation method that they had used was predicated on the actual annual rental income from the property.

The excluded evidence was not irrelevant because actual rental income is an important element in determining the value of a property where the property is currently devoted to its best use, and where the property is producing its maximum income. See footnote 4. The court held that the characterization of the instrument in question as a lease or a security-type agreement was not determinative of whether the property was producing rental at its optimal amount, and that the plaintiff was entitled to rebut the defendant’s evidence, which the ruling of the trier prevented it from doing. The judgment affirming the decision of the board of tax review was set aside because the evidence the plaintiff wanted to introduce to determine fair market value was relevant to a determination of fair market value using a capitalization of income method of valuation. The Supreme Court concluded that it could not say whether the disregarding of the plaintiffs evidence was harmless because it did not know if another method of fair market valuation was used by the trier or if the method chosen by the trier was capitalization of income. Id., 84.

Nor can we characterize the error in this case as harmless. The improper devaluation of the testimony of the plaintiffs expert and the exclusion of his report as irrelevant deprived the plaintiff of most of his evidence and prevented him from being able to satisfy his burden of showing aggrievement. Because the plaintiff could not show that the action of the board of assessors would result in the payment of an unjust tax, the trier could not properly reach the ultimate question to be decided, namely, the fair market value of the property.

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

In this opinion the other judges concurred.

       On October 15, 1992, Stephen Grossomanides sold his one-half interest in the subject property of this action to John Anagnos, a coowner of the property, who was substituted as the plaintiff in this action.

       The defendant’s expert’s appraisal report did not define “fee simple interest.”

       General Statutes § 12-63b (a) requires an appraiser to determine the market rent for property similar to the real estate being taxed as part of the “capitalization of net income” method of appraisal.
      General Statutes § 12-63b (b) provides in relevant part: “[T]he term ‘market rent’ means the rental income that such property would most probably command on the open market as indicated by present rentals being paid for comparable space. In determining market rent the assessor shall consider the actual rental income applicable with respect to such real property under the terms of an existing contract of lease at the time of such determination.”

       We also note that actual rental income is not necessarily irrelevant. “As a general principle earning or income-producing capacity, as distinguished from actual earnings, is to be regarded as a factor in valuation for taxation purposes, but if the property is devoted to the use for which it is best adapted and is in a condition to produce or is producing its maximum income, the actual rental is a very important element in ascertaining its value.”
        Federated Department Stores, Inc. v. Board of Tax Review, 162 Conn. 77, 83, 291 A.2d 715 (1971); see also Stamford Apartments Co. v. Stamford, 203 Conn. 586, 594, 525 A.2d 1327 (1987).


author: Per Curiam.

text:
    Town of Wilton v. James P. McGovern et al.
    (12643)
    Dupont, C. J., Foti, Freedman and Schaller, Js.
    Considered November 23, 1993
    decision released February 1, 1994

      James P. McGovern, pro se, the appellant (named defendant), in opposition to the motion.

      George J. Markley, in support of the motion, for the appellee (plaintiff).
   Per Curiam.

The plaintiff in this foreclosure action, the town of Wilton, filed a motion to dismiss the appeal. The plaintiff raises several grounds for dismissal, including the argument that the appeal was filed only for delay and is, therefore, frivolous. Because we agree with the plaintiff that the defendants’ appeal was taken only for the purpose of delay, we do not need to address the other grounds raised by the plaintiff.

This matter was previously before this court in a prior appeal. After the final judgment of foreclosure by sale was rendered on June 10,1991, the pro se defendants, James McGovern and Susan McGovern, took no action during the twenty day appeal period allowed under Practice Book § 4009 to preserve their right to appeal from the judgment of foreclosure. Specifically, they did not file a motion for an extension of time in the trial court pursuant to Practice Book § 4040 or an appeal. They also failed to file a motion to open the judgment during the appeal period, the filing of which would have extended the appeal period. See Farmers & Mechanics Savings Bank v. Sullivan, 216 Conn. 341, 579 A.2d 1054 (1990). As a result, the judgment of foreclosure by sale and any issues related thereto were no longer appealable once the appeal period elapsed. The defendants did, however, file a motion to set aside or open the judgment twenty-three days after entry of the final judgment. That motion to open was filed within the four month period provided by Practice Book § 326, and an appeal from the denial of the motion to open is ordinarily allowed under Farmers & Mechanics Savings Bank v. Sullivan, supra, 356, provided the appeal is timely filed. Even though their appeal from the denial of their motion to open or set aside was timely filed within twenty days of the decision denying their motion, the defendants’ appeal raised fifty-nine issues, none of which related to the denial of the motion to open or set aside. Therefore, this court granted the plaintiff’s motion to dismiss the appeal on the basis that the appeal was in substance a late appeal from the judgment of foreclosure by sale, instead of an appeal from the denial of the defendants’ motion to open the judgment.

Since the sale date passed during the pendency of the original appeal, the plaintiff, after dismissal of that appeal, moved on November 27,1992, to open the judgment to set a new sale date. The trial court granted the motion on January 11,1993, and set a sale date of July 24, 1993. On January 28, 1993, the defendants filed another motion to open the judgment raising essentially the same claims that they had previously attempted to raise. That motion was denied on June 14, 1993. On July 6, 1993, the defendants filed a second appeal.

The defendants indicate that they are currently appealing from “denials of motions for appointment of an impartial judge and to transfer; denial of motions to recuse; denial of motion to set aside decision granting motion for new sale date.” With the exception of the motion to set aside, these motions were filed and decided before the final judgment of foreclosure by sale was rendered in 1991 and were issues raised in the prior appeal.

The preliminary statement of issues filed by the pro se defendants in the current appeal lists fourteen issues, which are essentially identical to the issues raised in the previous appeal filed in 1991. The plaintiff contends that the defendants already had an opportunity to appeal from the foreclosure judgment and to raise all of the issues presented in their current appeal. According to the plaintiff, the defendants “should not be permitted to now forestall the efficacy of the court’s judgment once again by engaging in what is clearly a frivolous and meritless appeal.”

This court has previously granted a motion to dismiss an appeal where the appeal was taken solely as a dilatory tactic. Connecticut National Bank v. Zuckerman, 31 Conn. App. 440, 624 A.2d 1163 (1993). We conclude that the defendants have similarly brought this appeal as a dilatory tactic, solely for the purpose of delaying the inevitable. A foreclosure judgment was entered against the defendants in June, 1991. The defendants failed to appeal from the judgment of foreclosure in a timely manner. Instead, they filed numerous postjudgment motions and two appeals based on arguments that should have been raised in a timely appeal from the judgment of foreclosure. Through such tactics, the defendants have successfully delayed the sale of the property, thus depriving the plaintiff of the judgment awarded to it in 1991, and forcing the plaintiff to expend funds in defense of the judgment. Under these circumstances, it is difficult “to imagine a good faith argument that could be made on the merits of this appeal.” Id., 442, citing Texaco, Inc. v. Golart, 206 Conn. 454, 464, 538 A.2d 1017 (1988). “We will not elevate form over substance. The defendants’] sole purpose was delay.” Tolland Bank v. Larson, 28 Conn. App. 332, 337, 610 A.2d 720 (1992).

The final judgment of foreclosure by sale was rendered in 1991 and the defendants failed to file a timely appeal from that judgment. The defendants’ filing of this appeal, which is substantially identical to an appeal that was previously dismissed, amounts to a purely dilatory tactic.

The motion to dismiss the appeal is granted and the case is remanded for the purpose of setting a sale date.

       Practice Book § 4009 provides in relevant part: “time to appeal
      “The party appealing shall, within twenty days . . . from the issuance of notice of the rendition of the judgment or decision from which the appeal is taken file an appeal . . . but if within the appeal period any motion is filed which, if granted, would render the judgment or decision ineffective, as, for example, a motion to open the judgment . . . the period of time for filing an appeal shall commence from the issuance of notice of the decision upon the motion . . . .”

       Practice Book § 4040 provides in pertinent part: “extension of time
      “(a) If an appeal has not yet been filed, the judge who tried the case may, for good cause shown, extend the time provided for filing the appeal ....
      “(c) ... (4) A motion for extension of time shall be filed at least ten days before the expiration of the time limit sought to be extended . . . .”

       Practice Book § 326 provides in relevant part: “setting aside or opening JUDGMENTS
      “[A]ny civil judgment or decree rendered in the superior court may not be opened or set aside unless a motion to open or set aside is filed within four months succeeding the date on which it was rendered or passed. . . .”

       The trial court file indicates that the defendants used the terms “motion to open” and “motion to set aside” interchangeably with respect to their motion filed on January 28, 1993.