author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. KENNETH HENTON
    (AC 17824)
    Schaller, Sullivan and Daly, Js.

      Argued June 9
    officially released September 29, 1998

      Lawrence S. Dressier, special public defender, for the appellant (defendant).

      Richard F. Jacobson, supervisory assistant state’s attorney, with whom, on the brief, was Gerard Eisen-man, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant appeals from the judgment of conviction, rendered after a trial to the court, of robbery in the first degree in violation of General Statutes § 53a-134, the commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k and being a persistent dangerous felony offender in violation of General Statutes § 53a-40. The defendant claims that the trial court improperly (1) denied his motion for a new trial, (2) found that he made a voluntary, knowing and intelligent waiver of his right to a jury trial, (3) found that the evidence was sufficient to convict him of being a persistent dangerous felony offender, (4) admitted the pretrial identification of the defendant, (5) failed to refer the case to a three judge panel pursuant to General Statutes § 54-82 (b), (6) violated the defendant’s constitutional right against double jeopardy by convicting him of both robbery in the first degree and the commission of a class A, B or C felony with a firearm and (7) found that the evidence was sufficient to convict the defendant of robbery in the first degree. We reverse the judgment in part and remand the case with direction to vacate the defendant’s conviction under § 53-202k.

The following facts are relevant to the resolution of this appeal. At about 9 p.m. on August 27,1995, Victoria Hudson went to meet friends in a bar in Bridgeport. When she did not find her friends there, she left. Outside of the bar, Hudson was approached by a man she recognized from high school eighteen years earlier, whose name she could not remember. The man, later identified as the defendant, asked Hudson for a ride to the east side of Bridgeport. Hudson agreed to give him a ride and drove him to the Pembroke Street exit on Interstate 95. The defendant then asked her to turn onto a dead-end street, but Hudson became suspicious and pulled over on Pembroke Street. The defendant brandished a gun and threatened to shoot her in the head if she did not give him all of her money. Hudson handed him all of the money in her pocket, approximately forty to fifty dollars, at which point the defendant left the car and Hudson drove to her sister’s house.

The following morning, Hudson called the police from work to report the incident. She went to the Bridgeport police department the next day and looked at photographs of suspects fitting the defendant’s description, but was not able to identify her assailant at that time. A few days later, while she was describing the incident to her friends, they suggested the defendant as a possible suspect. She provided the defendant’s name to the police department and was called back to the station shortly thereafter to look at an array of six black and white photographs. Detective Robert Sapiro testified that Hudson pointed out the defendant’s photograph in the array, but was not absolutely certain it was of the defendant because the photographs were old. On December 18, 1995, however, Hudson looked at another array of six recent color photographs and immediately identified the defendant as the man who had robbed her.

After waiving his right to a jury trial, the defendant was tried by the trial court and convicted of robbery in the first degree, the commission of a class A, B or C felony with a firearm and being a persistent dangerous felony offender. The defendant filed a motion for a new trial, claiming that a conflict existed between him and his defense counsel. The court denied the defendant’s motion and sentenced him to fifteen years as a persistent dangerous felony offender and fifteen years on the robbery in the first degree count to be served concurrently. In addition, the defendant was sentenced to five years for the firearm count, to be served consecutively, for a total of twenty years. This appeal followed.

I

The defendant’s first claim is that his sixth amendment right to effective assistance of counsel was violated by the trial court’s denial of his motion for a new trial, which alleged a conflict of interest between the defendant and his counsel. The defendant did not properly preserve this claim at trial and now seeks review of it under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In Golding, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Id. “ ‘The first two questions relate to whether a defendant’s claim is reviewable, and the last two relate to the substance of the actual review.’ State v. Newton, 8 Conn. App. 528, 531, 513 A.2d 1261 (1986).” State v. Shinn, 47 Conn. App. 401, 409, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998). Since the record is adequate for review and the defendant has alleged a claim of constitutional magnitude, we will review it on appeal.

“Our state and federal constitutions guarantee a criminal defendant the right to assistance of counsel. U.S. Const., amend. VI; Conn. Const., art. I, § 8. As an adjunct to this right, a criminal defendant is entitled to be represented by an attorney free from conflicts of interest.” (Internal quotation marks omitted.) State v. Webb, 238 Conn. 389, 417, 680 A.2d 147 (1996). “This right requires that the assistance of counsel be ‘untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.’ ” State v. Martin, 201 Conn. 74, 78, 513 A.2d 116 (1986), quoting Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942).

As our case law demonstrates, “the right to conflict-free representation typically is implicated in cases involving representation of criminal codefendants by a single attorney.” State v. Williams, 203 Conn. 159, 167, 523 A.2d 1284 (1987). It has also been implicated, however, in cases where an attorney’s ability to represent his client effectively is impaired because the client’s interests conflict with the interests of an attorney’s other clients or third parties. See, e.g., Wood v. Georgia, 450 U.S. 261, 267, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (potential conflict between defendants’ interest and interest of their employer who paid for trial counsel); United States v. Winkle, 722 F.2d 605, 610 (10th Cir. 1983) (potential conflict because defendant’s attorney previously represented government’s key witness); Ross v. Heyne, 638 F.2d 979, 984-85 (7th Cir. 1980) (conflict because one attorney represented defendant while his law partner represented codefendants who testified for prosecution); Matter of Darr, 143 Cal. App. 3d 500, 510, 191 Cal. Rptr. 882 (1983) (conflict due to defense counsel’s concurrent representation of defendant and key prosecution witness); State v. Gonsalves, 476 A.2d 108, 110 (R.I. 1984) (conflict because defense counsel previously represented individual who actually committed crime for which defendant being tried). Thus, “[i]t is not representation of more than one client which deprives a defendant of his constitutional right to effective assistance of counsel, it is representation of clients with adverse interests.” (Emphasis added; internal quotation marks omitted.) State v. Martin, supra, 201 Conn. 81.

In the present case, the defendant claims that a conflict of interest arose because he and his defense counsel disagreed over whether the defendant should waive his right to a jury trial. The defendant does not assert, however, that his counsel’s advice to elect a jury trial was for the benefit of another. See Blakeney v. Commissioner of Correction, 47 Conn. App. 568, 584-85, 706 A.2d 989, cert. denied, 244 Conn. 913, 713 A.2d 830 (1998). Nor does the defendant claim that his counsel was unable to represent him effectively because the defendant’s interests conflicted with the interests of his counsel’s other clients or third parties. See State v. Martin, supra, 201 Conn. 80-81. We conclude that what the defendant referred to as a “conflict of interest” between him and his trial counsel was, instead, merely a disagreement because it did not arise out of counsel’s representation of clients with adverse interests. See id., 81. The trial court’s denial of the defendant’s motion for a new trial, therefore, was not in violation of his sixth amendment right to effective assistance of counsel.

II

The defendant next claims that the trial court improperly found that he made an effective waiver of his right to a jury trial. The defendant concedes that this claim was not raised at trial and, thus, was not properly preserved. He now seeks review of it under the standards of State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim, as the record is adequate for review and the alleged violation is of constitutional magnitude because it involves his constitutional right to a jury trial. U.S. Const., art. Ill, § 2. We conclude, however, that the defendant has failed to show that the alleged violation clearly exists and clearly deprived him of a fair trial.

“The right to a jury trial in a criminal case is among those constitutional rights which are related to the procedure for the determination of guilt or innocence. The standard for an effective waiver of such a right is that it must be knowing and intelligent, as well as voluntary. ... In determining whether this strict standard has been met, a court must inquire into the totality of the circumstances of each case.” (Internal quotation marks omitted.) State v. Chapman, 46 Conn. App. 24, 30, 698 A.2d 347, cert. denied, 243 Conn. 947, 704 A.2d 800 (1997), cert. denied, 523 U.S. 1063, 118 S. Ct. 1393, 140 L. Ed. 2d 652 (1998). “The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Internal quotation marks omitted.) State v. Schockley, 188 Conn. 697, 707, 453 A.2d 441 (1982).

This case is governed by our decision in State v. Tangari, 44 Conn. App. 187, 193-94, 688 A.2d 1335, cert. denied, 241 Conn. 901, 693 A.2d 304, cert. denied, 522 U.S. 867, 118 S. Ct. 177, 139 L. Ed. 2d 118 (1997). In Tangari, we held that the defendant made a knowing, intelligent and voluntary waiver of her right to a jury trial because she was advised of her right to a jury trial in open court, was represented by competent counsel, discussed the waiver of a jury trial with her counsel and responded affirmatively when she was asked whether she understood that she was giving up the right to a jury trial by electing to be tried by the court.

Here, as in Tangari, the record demonstrates that the defendant was represented by competent counsel, was advised of his right to a jury trial in open court and responded affirmatively when asked by the court whether he understood that he was giving up his right to a trial by jury.

Further, there is nothing that would indicate that the defendant was not of ordinary intelligence and educational background, and the choice of a trial by jury or by the court was fully discussed with him by his counsel. See State v. Crump, 201 Conn. 489, 504-505, 518 A.2d 378 (1986). We conclude, in light of the totality of the circumstances on the record, that the defendant waived his right to a jury trial and that his waiver was voluntary, knowing and intelligent.

Ill

The defendant next claims that the trial court improperly found that there was sufficient evidence to convict him as a persistent dangerous felony offender in violation of § 53a-40. Specifically, the defendant asserts that the state failed to prove that he had been previously convicted of robbery in the first degree, as the second element of § 53a-40 requires. The defendant concedes that his trial counsel did not move for a judgment of acquittal at the end of the state’s case or at the close of all of the evidence, and he therefore seeks review of this claim pursuant to Golding.

“Unpreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof. See State v. Adams, 225 Conn. 270, 275-76 n.3, 623 A.2d 42 (1993).” State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995). “When reviewing sufficiency of the evidence claims, we impose a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. . . . State v. Rivera, 32 Conn. App. 193, 200-201, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).” (Internal quotation marks omitted.) State v. Laws, supra, 281.

In the present case, the state produced a certified copy of the December 22, 1983 judgment, sentencing the defendant on his conviction for robbery in the first degree, as proof of a prior felony conviction. In addition, the state offered the testimony of Detective Richard Herlihy of the Bridgeport police department. Herlihy is the head of the identification crime scene unit and maintains the fingerprints used by the department. After comparing a set of fingerprints taken following the defendant’s arrest in 1983 for robbery in the first degree with a set taken following the defendant’s arrest in 1996 for the crimes underlying this appeal, it was Herlihy’s opinion that the fingerprints were identical.

Further, the trial court allowed Herlihy to take the defendant’s fingerprints in court. Herlihy testified that he believed all three sets of fingerprints were from the defendant. The state also offered into evidence a copy of the defendant’s uniform arrest report listing an arrest for robbery in the first degree and assault in the second degree in April, 1983, and the mittimus reflecting the defendant’s commitment to state prison for the robbery conviction. Finally, Detective Joseph Sherbo of the Bridgeport police department testified that he arrested the defendant on April 8, 1983, for the robbery and assault charges listed on his uniform arrest report.

The defendant’s claim is that without the testimony of Detective Michael Supple, who arrested the defendant on the robbery and assault charges in 1983 and took the defendant’s fingerprints when he was arrested on those charges, the state’s evidence was insufficient to prove the defendant’s prior felony conviction pursuant to § 53a-40. This claim is without merit.

Our Supreme Court has stated that “[t]o prove a conviction, it is necessary to show it by the record of a valid, subsisting final judgment.” State v. Couture, 151 Conn. 213, 219, 196 A.2d 113 (1963). Here, it is undisputed that the state offered into evidence the defendant’s valid judgment of conviction for robbery in the first degree in 1983. The defendant, however, argues that without Supple’s testimony, it is uncertain whether his fingerprints were mistakenly attached to the 1983 judgment form. The defendant has misunderstood Couture as requiring additional evidence to prove a prior conviction; rather, Couture provides that “[n]othing in § 53a-40 (a) precludes the state from offering probative evidence to clarify an official judgment of conviction in order to prove that the defendant is a second offender within the reach of the statute.” (Emphasis added.) State v. Fullwood, 194 Conn. 573, 589, 484 A.2d 435 (1984). Because no such ambiguity existed regarding whether the defendant’s prior conviction of robbery in the first degree put him within the reach of § 53a-40, the admission into evidence of the defendant’s judgment of conviction for the 1983 robbery charge, alone, proved his prior felony conviction. See id.

We conclude that in construing the evidence in the light most favorable to sustaining the trial court’s verdict, the trial court reasonably could have concluded that the state proved beyond a reasonable doubt all of the elements of the crime of being a persistent dangerous felony offender.

IV

The defendant next claims that he was denied his right to due process of law when the trial court improperly admitted into evidence his pretrial identification, which he asserts was unnecessarily suggestive. We disagree.

“It is well settled that [i]n determining whether a pretrial identification procedure violated a defendant’s due process rights, the required inquiry is made on an ad hoc basis and is two-pronged: first, 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 an examination of the totality of the circumstances. . . . Generally, [t]he exclusion of evidence from the jury is ... a drastic sanction, one that is limited to identification testimony which is manifestly suspect.” (Internal quotation marks omitted.) State v. Carter, 47 Conn. App. 632, 638, 708 A.2d 213, cert. denied, 244 Conn. 909, 713 A.2d 828 (1998). “An identification procedure is unnecessarily suggestive only if it gives rise to a very substantial likelihood of irreparable misidentification.” (Internal quotation marks omitted.) State v. Evans, 44 Conn. App. 307, 318-19, 689 A.2d 494, cert. denied, 240 Conn. 924, 692 A.2d 819 (1997).

In the present case, the defendant claims that his pretrial identification was unnecessarily suggestive for several reasons: (1) the second array of photographs was selected after Hudson provided the defendant’s name to the police department; (2) Sapiro told Hudson that in identifying the defendant, she must “identify him 100 percent,” indicating to her that the defendant’s photograph was in the array; (3) Hudson failed to identify the defendant in the first two groups of photographs; and (4) when Sapiro asked Hudson to view the last group of color photographs, he referred to them as “new” pictures, suggesting that the defendant had recently been arrested and enticing Hudson to identify the defendant, whom she recognized from high school, not from the robbery.

We disagree that these conditions made the pretrial identification unnecessarily suggestive. In the present case, the victim pointed to the defendant’s picture in the second array of photographs, but failed to identify him with absolute certainty because the photographs were old. Sapiro later arranged for Hudson to view a third, more recent group of color photographs. From these she made a definite and immediate identification of the defendant.

We are also not convinced that Sapiro’s instruction to Hudson that she would “have to identify him 100 percent,” referring to the defendant, unnecessarily suggested which photograph in the group was of the defendant. Further, the transcript does not indicate that Sapiro referred to the third group of photographs as “new” when he showed them to Hudson, nor are we persuaded that this would have aided or enticed Hudson to identify the defendant’s photograph from among the others, had it occurred.

Nevertheless, assuming arguendo that the pretrial identification procedure was unnecessarily suggestive, we will consider whether, under all of the circumstances, the identification was rehable. State v. Ramsundar, 204 Conn. 4, 10, 526 A.2d 1311, cert. denied, 484 U.S. 955, 108 S. Ct. 348, 98 L. Ed. 2d 374 (1987). “The factors to be considered in determining the reliability of an identification subsequent to a suggestive identification procedure include the opportunity of the witness to view the criminal at the time of the crime. [T]he witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation and the time between the crime and the confrontation . . . [are] to be weighed [against] the corrupting effect of the suggestive identification itself.” (Internal quotation marks omitted.) State v. Evans, supra, 44 Conn. App. 320.

In this case, Hudson had ample opportunity to view her assailant before and during the robbery. She talked to him in a well lit area outside of the bar for several minutes and drove in her car with him for fifteen to twenty minutes before the robbery occurred. Finally, only four months had passed between the August 27, 1995 robbery and the identification on December 18, 1995. This time period is not so long as to render Hudson’s identification unreliable. See State v. Parker, 197 Conn. 595, 600, 500 A.2d 551 (1985) (ten month period between identification and victim’s viewing of assailant did not render identification unreliable). We conclude that, considering the totality of the circumstances, the pretrial identification was not unnecessarily suggestive and was sufficiently reliable to be considered by the trial court. See State v. Ramsundar, supra, 204 Conn. 12-13.

V

The defendant next claims that the trial court improperly failed to refer his case to a panel of three judges under § 54-82 (b). Specifically, he argues that this was a violation of his right to equal protection because § 54-82 (b) arbitrarily classifies criminal defendants for the purpose of entitling them to have their cases tried by a three judge panel on the basis of whether they have been charged with a crime for which they face the death penalty or life imprisonment. The defendant did not raise this claim at trial and, therefore, seeks review of his unpreserved claim under Golding. We will review the defendant's claim because the record is adequate for review and the alleged violation is of constitutional magnitude, as it involves his constitutional right to equal protection under the laws of this state. U.S. Const., amend. XIV; Conn. Const., art. I, § 20. Nevertheless, we conclude that the defendant has failed to show that the . alleged violation clearly exists and clearly deprived him of a fair trial.

Having been charged with being a persistent dangerous felony offender with one prior felony conviction, the defendant faced a maximum sentence of forty years imprisonment. General Statutes § 53a-40 (f). The defendant argues, however, that he was effectively sentenced to life imprisonment because, according to actuarial data, he had a life expectancy of only thirty-seven and one-half years. It is the defendant’s contention, therefore, that he was equally entitled to be tried by a three judge panel, since § 54-82 (b) entitles those who are charged with crimes for which they face life imprisonment to have their cases tried by such a panel. The defendant claims that § 54-82 (b) treats similarly situated criminal defendants differently for no rational basis, in violation of his right to equal protection.

“To implicate the equal protection clauses under the state and federal constitutions . . . it is necessary that the state statute in question, either on its face or in practice, treat persons standing in the same relation to it differently. ... To determine whether a particular classification violates the guarantees of equal protection, the court must consider the character of the classification; the individual interests affected by the classification; and the governmental interests asserted in support of the classification.” (Citations omitted; internal quotation marks omitted.) State v. Morales, 240 Conn. 727, 738-39, 694 A.2d 758 (1997).

Life imprisonment is defined in Connecticut as a definite sentence of sixty years. General Statutes § 53a-35b. Although the defendant may have died during incarceration, had he been sentenced to forty years imprisonment, we cannot say that he faced a sentence of life imprisonment. The defendant, not having been sentenced to life imprisonment pursuant to § 53a-35b, would have had the possibility of freedom from incarceration before sixty years had passed. We conclude, therefore, that a criminal defendant facing a sentence of less than sixty years is not in a situation similar to that of a person who faces life imprisonment as defined by § 53a-35b. Accordingly, we determine that the defendant’s equal protection right was not violated when he was not provided with the opportunity pursuant to § 54-82 (b) to have his case heard before a panel of three judges.

VI

The defendant next claims that the trial court violated his constitutional right to be free of double jeopardy by convicting him of both robbery in the first degree and the commission of a class A, B or C felony with a firearm. The defendant did not raise this claim at trial and now seeks review of it under Golding. We will review the defendant’s claim because the record is adequate for review and the alleged violation is of constitutional magnitude. Although we conclude that the defendant’s claim fails the third prong of Golding, we agree that his separate conviction under § 53-202k should be vacated.

“A claim of double jeopardy which is adequately supported by the record is reviewable under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).” State v. Williams, 12 Conn. App. 225, 229, 530 A.2d 627 (1987). “The double jeopardy issue has previously been addressed by this court in State v. Ingram, 43 Conn. App. 801, 826, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997), in which we concluded that providing for sentence enhancement for crimes committed with a firearm [under § 53-202k] was a valid legislative determination that did not violate the constitutional prohibition against double jeopardy.” State v. Williams, 48 Conn. App, 361, 373-74, 709 A.2d 43, cert. denied, 245 Conn. 907, 718 A.2d 16 (1998). We conclude, therefore, that the defendant’s double jeopardy claim is without merit.

Nevertheless, our Supreme Court recently concluded that § 53-202k was a sentence enhancement provision, not a separate substantive offense for which a defendant could be convicted. State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997). The state concedes that Dash is controlling here and that the defendant’s conviction under § 53-202k should be vacated. Accordingly, we remand the case to the trial court to vacate that conviction and to resentence the defendant to a period of twenty years on the robbery in the first degree and on the persistent dangerous felony offender convictions, enhanced pursuant to § 53-202k.

VII

The defendant’s last claim is that the trial court improperly found that there was sufficient evidence to convict him of robbery in the first degree in violation of § 53a-134. The defendant concedes that his trial counsel did not move for a judgment of acquittal at the end of the state’s case or at the close of all of the evidence, and he therefore seeks review of this claim pursuant to Golding. We will review the defendant’s claim, as the record is adequate for review and the alleged violation is of constitutional magnitude because it involves his constitutional right not to be convicted of a crime upon insufficient proof. State v. Adams, supra, 225 Conn. 275-76 n.3.

After careful review of all of the evidence before the trial court and after construing it in a light most favorable to sustaining the verdict, we conclude that the trial court reasonably could have determined that the defendant was guilty beyond a reasonable doubt of robbery in the first degree. See State v. Laws, supra, 37 Conn. App. 281. The defendant’s claim fails the third prong of Golding.

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Although the defendant titled this pleading a “motion to set aside the verdict,” the trial court treated it as a motion for a new trial pursuant to Practice Book § 42-53.

       The defendant’s sixth claim in his brief is closely related to his fifth claim, and we address them together in part V of this opinion.

       It should be noted that during sentencing on January 31, 1997, the trial court sentenced the defendant to fifteen years for the persistent dangerous felony offender count and five consecutive years for the commission of a class A, B or C felony with a firearm count, for a total of twenty years. The trial court, however, failed to sentence him on the robbery in the first degree count. In the court’s judgment written on January 31, 1997, however, the defendant was sentenced to fifteen years for the robbery in the first degree count and five consecutive years for the firearm count, but the trial court failed to sentence him to fifteen years on the persistent dangerous felony offender count. Since both sentences totaled twenty years, it appears that the trial court intended to sentence the defendant to fifteen years on both the persistent dangerous felony offender and the robbery in the first degree counts, to be served concurrently, and five consecutive years on the firearm count.

       The following colloquy between the trial court and the defendant occurred on September 26, 1996, before the defendant was tried on the robbery in the first degree and the firearm charges:
      “Q. Mr. Henton, I want to ask you a few questions then before I accept this waiver, and the purpose of these questions is for me to determine that this is being done voluntarily by you and that no one is forcing you to do this or anything of that sort. So let me ask you these questions. First, Mr. Henton, how far through school did you go?
      “A. Tenth grade, Your Honor . . . but I did require—I did complete a G.E.D.
      “Q. All right. Now you heard, Mr. Henton, [your counsel] just said that you want to waive a jury trial and have your case tried to the court before me, is that correct?
      “A. Yes, Your Honor.
      “Q. Okay. Now you know if I accept this waiver, you’re giving up the right to have a jury determine the facts in this case, to determine your guilt or innocence in this case. You understand that?
      “A. Yes, Your Honor.
      “Q. Okay. And you know that during a court trial, I will determine the facts, which the jury normally does. I’ll do that myself.
      “A. Yes, Your Honor.
      “Q. And you want me to do that?
      “A. Yes, Your Honor.
      “Q. Okay. Is anyone forcing you to do this, Mr. Henton?
      “A. No, Your Honor.
      * * ❖
      “Q. Okay. You’ve had enough time to think about this?
      “A. Yes, Your Honor.
      "Q. [Your counsel] said you had some conversations in the past about doing this, is that right?
      "A. Yes, we have, Your Honor.
      :}i * %

        “Q. All right. So you’ve made up your mind and it’s final as far as you’re concerned. This is what you want to do?
      “A. Yes, I do, Your Honor.
      ❖ ❖ ❖
      “Q. Do you have any questions at all about any rights you may be giving up by doing this or anything a.t all?
      “A. Yes, Your Honor. As far as I understand my right, I—I would be giving up my right to jury trial, you know, by having a jury to decide, okay, and that would mean that I elected you, Your Honor, as a judge to determine. “Q. That’s right.”
      A similar exchange occurred on October 2, 1996, immediately prior to the defendant’s trial on the persistent dangerous felony offender charge. The defendant again elected to waive his right to a jury trial after a thorough canvassing on this issue by the trial court and after the defendant was allowed several recesses to discuss his decision with his counsel.

       General Statutes § 54-82 (b) provides in relevant part: “If the accused is charged with a crime punishable by death or imprisonment for life and elects to be tried by the court, the court shall be composed of three judges . . . .”


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    MACELLIS GLASS, EXECUTOR (ESTATE OF JUDITH W. GLASS) v. PETER MITCHELL CONSTRUCTION LEASING AND DEVELOPMENT CORPORATION
    (AC 16730)
    O’Connell, C. J., and Sullivan and Daly, Js.

      Argued May 5
    officially released September 29, 1998

      Wesley W. Horton, with whom were Susan M. Cor-mier and, on the brief, John A. Reed and Michele C. Camerota, legal intern, for the appellant (named defendant).

      Vincent M. Musto, with whom was Lillian C. Gustilo, for the appellee (plaintiff).
   Opinion

O’CONNELL, C. J.

The origin of this case is a fatal motor vehicle accident. The defendant appeals from the judgment, rendered after a jury trial, in favor of the plaintiff executor of the decedent’s estate. The defendant claims that the trial court improperly (1) found a unity of interest among four defendants for voir dire purposes, (2) failed to set aside the verdict despite the absence of proximate cause, (3) failed to set aside the verdict because the evidence was insufficient to establish that the defendant’s negligence equaled or exceeded that of the plaintiff, (4) admitted evidence of the lack of a stop sign, (5) charged the jury concerning the defendant’s duty to erect a stop sign and (6) refused to submit to the jury the defendant’s requested interrogatories on apportionment. Because we reverse the judgment of the trial court as to the first issue, we do not reach the defendant’s remaining five claims.

The following facts are relevant to the disposition of this appeal. On April 4, 1989, Judith W. Glass operated a motor vehicle on an unfinished roadway located on private property, from which she entered a public roadway where her car was struck by another vehicle and she was killed. The plaintiff, as executor of the decedent’s estate, brought a negligence action in August, 1990, against six entities: The Jewish Home for the Elderly (Jewish Home), the owner of the property on which the unfinished roadway is located; Peter Mitchell Construction Leasing and Development Corporation (Mitchell), the general contractor for the roadway site work; Gonchor and Sput Architects and Planners (Gonchor and Sput), the architect of the project; James W. Tate and Associates (Tate), the landscape architect for the site work; Huntington Company and Darien Asphalt Paving Company. The action was withdrawn as to Huntington Company and Darien Asphalt Paving Company before the start of jury selection.

Shortly before voir dire, the trial court granted the joint motion of the four remaining defendants to sever various third party and cross claims that they had brought against one another. The plaintiff then filed a motion requesting the court to declare the existence of a unity of interest among the four defendants for the purposes of making peremptory challenges during jury selection. General Statutes § 51-241. The defendants argued that their individual interests were sufficiently dissimilar to warrant separate peremptory challenges. After reading the complaint against the four defendants, the third party complaint, the responses to the complaints and the special defenses, the trial court held that “while the interests of the defendants may not be identical, the interests are similar and based upon the pleadings [the trial court concluded that] they are substantially similar.” The trial court, therefore, restricted the defendants collectively to only four peremptory challenges.

Following the selection of the six regular jurors, but prior to the selection of the alternates, the plaintiff withdrew the action against three defendants, leaving Mitchell as the only remaining defendant. Mitchell then filed a motion for a mistrial on the ground that because the jury was picked under the unity of interest rule applying to four defendants, Mitchell, as the sole remaining defendant, was prejudiced. The trial court denied the motion and instructed the plaintiff and Mitchell to select three alternates. At that point, Mitchell had two peremptory challenges remaining and was granted one additional challenge for use in the selection of alternate jurors. The alternates chosen by the parties were ultimately excused by the court and the case was decided by the six original jurors.

During trial, the contract between the Jewish Home and Mitchell was entered into evidence. The relevant provisions explicitly required Mitchell to do whatever was reasonably necessary to ensure public safety on the unimproved roadway. This included erecting traffic signs or taking other precautions as required by then existing conditions or by local ordinances. The contract further stated that Mitchell was to be held responsible for all damages caused by its failure to provide such proper safeguards. On more than one occasion, Mitchell attempted to abdicate its responsibility over the safety of the roadway by requesting, via letter, that the contract be modified. The Jewish Home never responded to Mitchell’s requests.

The jury returned a verdict in favor of the plaintiff in the amount of $2,080,500, reduced to $1,040,250 by the fifty percent comparative negligence of the plaintiffs decedent. The defendant now appeals from the trial court’s initial finding of unity of interest among the defendants.

The defendant claims that according to Beach v. Regional School District Number 13, 42 Conn. App. 542, 682 A.2d 118, cert. denied, 239 Conn. 939, 684 A.2d 710 (1996), the trial court improperly found a unity of interest among Mitchell, the Jewish Home, Tate, and Gonchor and Sput, which restricted Mitchell’s ability to select an impartial jury. We agree.

“[T]he decision of whether parties share a ‘unity of interest’ lies in the trial court’s discretion.” Id., 549. “In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice.” (Citation omitted; internal quotation marks omitted.) State v. Medley, 48 Conn. App. 662, 665-66, 711 A.2d 1191, cert. denied, 245 Conn. 915, 718 A.2d 19 (1998).

In Beach v. Regional School District Number 13, supra, 42 Conn. App. 544, the plaintiff, a food service worker at a regional high school, sought to recover for personal injuries she sustained when she fell on an icy sidewalk at the school. The defendants named were, inter alia, the superintendent of schools, the supervisor of buildings and grounds, and the acting head custodian. Id, 543 n. 1. In her complaint, the plaintiff alleged identical counts of negligence against each of these individual defendants. Id, 550. In response to the plaintiffs allegations, the defendants filed the same answer and asserted the same special defenses. Id, 544.

Prior to trial, the plaintiff filed a motion requesting the court to find that these individual defendants had a unity of interest and that the court should consider them a single party for the purpose of making peremptory challenges during jury selection. Id, 545. The trial court denied the motion and allowed the defendants a total of ten peremptory challenges to the plaintiffs four. Id, 545-46.

In affirming the trial court’s decision, we held that “[t]he fact that the plaintiffs complaint states the same counts of negligence against each defendant is not dis-positive. In her complaint, the plaintiff alleges that the three defendants were negligent in failing to remedy the icy condition, to warn of that condition, and to place barricades around the icy sidewalk. The duty of each individual defendant toward remedying this alleged condition is distinct. The jury might determine that the parties in supervisory positions failed to delegate the duty to clear the sidewalks properly or to implement a proper policy. The jury might determine that the person assigned to clear the sidewalks was negligent. The jury might determine that each party was negligent, but each in a separate and distinct manner, or that one individual defendant’s role was ministerial, whereas another defendant’s role was discretionary. The liability of each, therefore, could differ.” (Emphasis in original.) Id., 550-51.

The Beach court further stated that the identical special defenses were not dispositive and that “the defendants’ conflict was not with each other, but . . . arises in terms of what their different [interests are] or in defending themselves against the claims of the plaintiff.” (Internal quotation marks omitted.) Id., 551-52.

Because the unity of interest issue was one of first impression for the Beach court; id., 549; that court examined the legislative history of § 51-241 and found specific examples of where there may be substantially similar interests among parties. These examples included (1) the interest of an agent and principal, when agency is not denied, (2) the interest of a motor vehicle driver and motor vehicle owner when permission to use the vehicle is not in dispute, (3) where multiple plaintiffs were passengers injured in the same motor vehicle accident and (4) in an instance of respondeat superior where the employer is liable for the employee’s negligent activities. The legislative history cited by the Beach court also discusses an example involving an instance of medical malpractice, in which no unity of interest could be found because there were separate issues of liability for the hospital and the medical professionals involved.

In the present case, as in Beach and also like the medical malpractice example discussed by the legislators, the interests among the multiple defendants might have been found by a jury to be sufficiently antagonistic to preclude the finding of unity of interest. The jury might have found that Mitchell was negligent in failing to install the stop sign and also that the Jewish Home was negligent in its supervision of such installation. The jury might have further found that Gonchor and Sput or Tate was negligent in failing to implement properly plans providing for traffic safeguards or that some combination of two or more parties’ negligence proximately caused the decedent’s death. Moreover, the jury might have found that Mitchell’s contract with the Jewish Home made him solely responsible for keeping the unfinished roadway safe, and that the Jewish Home’s duty in that regard might have been delegated and thus nonexistent. Finally, the jury might have found that neither Tate nor Gonchor and Sput owed any duty to keep the roadway safe for the public. In sum, the jury might have determined as in Beach that “each party was negligent, but each in a separate and distinct manner, or that one . . . defendant’s role was . . . discretionary.” (Emphasis in original.) Id., 551.

The adversity of Mitchell’s interest to the other defendants is even more apparent when considering the third party and cross claims among them. The four defendants blame each other and, in fact, jointly filed a motion to sever these conflicting claims to prevent the jury from being confused. It remains irrelevant to the existence of possible differing duties among the defendants that the allegations of negligence against the four defendants were identical. See id.

It is significant that in Beach we found no unity of interest where the individual defendants were all employees of the same institution and where there existed relationships that closely resembled those of agents or servants and principals. In the present case, the defendants were an aggregation of independent contractors and the owner of the property on which the road was constructed. The relationship of the defendants in the present case makes a finding of unity of interest even more inappropriate than it was in Beach.

The plaintiff claims that even if the court improperly found unity of interest, to prevail on his claim the defendant must show that he has been harmed. The plaintiff asserts that because the defendant failed to exhaust all of his peremptory challenges, he cannot prove prejudice and his claim must fail. In State v. Malave, 47 Conn. App. 597, 602, 707 A. 2d 307, cert. granted, 244 Conn. 913, 713 A.2d 832 (1998), this court held that in situations involving peremptoiy challenges, the trial court’s “ ‘actions ordinarily will not be disturbed unless the court has clearly abused its discretion or it appears that prejudice to one of the parties has resulted.’ ” (Emphasis added.) Because we conclude that the trial court abused its discretion when it found unity of interest among the defendants, we need not address whether prejudice resulted to Mitchell.

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

In this opinion the other judges concurred.

       Because it is undisputed that the driver of the vehicle that struck the decedent was not at fault, the plaintiff did not bring an action against him.

       General Statutes § 51-241 provides: “On the trial of any civil action to a jury, each party may challenge peremptorily three jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this section, a ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.”
      The right to peremptory challenges is guaranteed by article first, § 19, of the constitution of Connecticut, as amended by article four of the amendments. “ ‘In all civil and criminal actions tried to a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law.’ ” State v. McDougal, 241 Conn. 502, 519, 699 A.2d 872 (1997).

       There is nothing more in the transcript to identify the grounds on which the trial court found “substantially similar” interests.

       In her motion, the plaintiff in Beach claimed that unity of interest should be found among the individual defendants because “ ‘(1) Identical allegations of negligence were asserted against the defendants in a one-count complaint; (2) The defendants had the same counsel before and at trial; (3) They filed the same answer to the complaint; (4) They asserted the same special defenses; (5) They were insured by the same insurance carrier under the same policy; (6) The institutional defendants agreed to indemnify the individual defendants from any adverse verdict; and (7) The individual defendants conceded that they had no conflict with each other.’ ” Beach v. Regional School District Number 13, supra, 42 Conn. App. 548-49.

       Even if we were compelled to address the prejudice issue, Mitchell would nevertheless prevail in its claim because it was not required to exhaust all of its peremptory challenges before raising a challenge to the makeup of the jury that ultimately decided the case, as contrasted to an objection to the seating of a specific juror. In State v. Malave, supra, 47 Conn. App. 602-603, this court held that the “fact that the defendant did not exercise all of his peremptory challenges does not foreclose his ability to raise the present claim of error.” (Internal quotation marks omitted.) The claim was properly before the court because the defendant “must be entitled to explore the area of possible bias or partiality before he can intelligently . . . exercise his right of peremptory challenge.” (Internal quotation marks omitted.) Id., 602. In this case, the possible bias against Mitchell did not arise until the three other defendants had settled, at which time the jury had been selected. The fact that Mitchell still had two peremptory challenges remaining at that time was irrelevant—the entire voir dire process had already been tainted.


author: DALY, J. LANDAU, J.,

text:
    MICHAEL E. NAZARKO ET AL. v. CONSERVATION COMMISSION OF THE TOWN OF EAST LYME ET AL.
    (AC 17164)
    (AC 17186)
    Landau, Sullivan and Daly, Js.
    Argued June 9
    officially released September 29, 1998

      Edward B. O’Connell, for the appellant (named defendant).

      Theodore A. Harris, for the appellant (defendant Niantic Sportsmen’s Club, Inc.).

      David F. Sherwood, for the appellees (plaintiffs).

      Janet P. Brooks, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant commissioner of environmental protection).
   Opinion

DALY, J.

The plaintiff abutting property owners appealed to the trial court from the decision of the defendant conservation commission of the town of East Lyme (commission) granting the application of the defendant Niantic Sportsmen’s Club, Inc. (club), for a special permit to operate a skeet shooting range on its property. The trial court sustained the appeal on the ground that an ex officio member of the commission failed to disqualify himself from the proceedings.

The defendants’ petition for certification to appeal having been granted, the following issues have been raised: (1) whether General Statutes § 22a-42 (c) applies to Ronald Rando, an ex officio member of the commission; (2) whether Rando’s participation in the proceedings invalidates the commission’s actions; and (3) whether the plaintiffs’ failure to object to Rando’s participation at the hearing precludes the plaintiffs from raising the issue of disqualification.

“ ‘The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record.’ ” Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 14, 664 A.2d 719 (1995).

I

The defendants maintain that § 22a-42 (c), which provides in relevant part that “[n]o member or alternate member of such board or commission shall participate in the hearing or decision of such board or commission of which he is a member upon any matter in which he is directly or indirectly interested in a personal or financial sense,” is inapplicable because Rando was an ex officio member. In November, 1993, Rando was elected to serve a two year term as a member of the board of selectmen in the town of East Lyme. Pursuant to § 3.2.2. of the charter of the town of East Lyme, Rando was appointed by the first selectman to serve as an ex officio member of the conservation commission from 1993 to 1995.

The defendants rely on Lurie v. Planning & Zoning Commission, 160 Conn. 295, 309, 278 A.2d 799 (1971); and Ghent v. Zoning Commission, 220 Conn. 584, 600 A.2d 1010 (1991), as exempting ex officio members from participation. Their reliance is misplaced because Lurie involved the first selectman of the town of Westport, and Ghent involved the mayor of Waterbury in their ex officio capacities. Mayors and other chief executives, when popularly elected, expect to become proponents for legislative change. Id., 588. The purpose of making a mayor chairman ex officio of various boards and commissions in the city “is to allow him to have some input into the work of these agencies.” Id., 589-90.

We conclude that the statute is ambiguous concerning ex officio members. “[T]o ascertain and give effect to the apparent intent of the legislature, we must examine the language of the statute in light of the purpose that it was designed to achieve. ... In implementing the purpose of the statute, [w]e must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve. ... If there are two possible interpretations of a statute, we will adopt the more reasonable construction over one that is unreasonable.” (Citations omitted; internal quotation marks omitted.) Jones v. Mansfield Training School, 220 Conn. 721, 726, 601 A.2d 507 (1992).

We have repeatedly emphasized that “ ‘[neutrality and impartiality of members are essential to the fair and proper operation of . . . [zoning] authorities.’ ” Fletcher v. Planning & Zoning Commission, 158 Conn. 497, 507, 264 A.2d 566 (1969). It is not unreasonable to apply the same standards to ex officio members.

II

The defendants next claim that Rando’s limited participation did not invalidate the commission’s action. Rando was present at the public hearing on June 8, 1994, during which he sat at the commission’s table and asked two questions of the plaintiffs’ witness, Richard Whiting, and one question of the chairman. He did not attend the June 9, 1994 public hearing, but did attend the hearing on June 10, 1994, during which he asked one question regarding how long shooting had been going on at the Remington Arms Range and was challenged as being biased by Michael Stephens. He did not participate in the voting.

Rando testified before the trial court that part of his duties as a selectman was to appoint members of the commission. He further testified that he held membership in the club, and that as the owner of the only gun shop in town he may have sold shotgun shells and guns to fellow members.

“[T]he appearance of impropriety created by a public official’s participation in a matter in which he has a pecuniary or personal interest is sufficient to require disqualification. See General Statutes §§8-11 and 8-21. ‘This prophylactic rule serves the salutary purposes of promoting public confidence in the fairness of the decision-making process and preventing the public official from placing himself in a position where he might be tempted to breach the public trust bestowed upon him. See Thorne v. Zoning Commission, [178 Conn. 198, 203-205, 423 A.2d 861 (1979)].’ Gaynor-Stafford, Industries, Inc. v. Water Pollution Control Authority, 192 Conn. 638, 649-50, 474 A.2d 752 (1984). The test is not whether the personal interest does conflict but whether it reasonably might conflict.” Petrowski v. Norwich Free Academy, 199 Conn. 231, 241, 506 A.2d 139, appeal dismissed, 479 U.S. 802, 107 S. Ct. 42, 93 L. Ed. 2d 5 (1986). “A personal interest, we have said, is ‘apersonal bias or prejudice which imperils the openmindedness and sense of fairness which a zoning official in our state is required to possess.’ ” Fletcher v. Planning & Zoning Commission, supra, 158 Conn. 506. “Public policy requires that members of public boards cannot be permitted to place themselves in a position in which personal interest may conflict with public duty.” Zeigler v. Thomaston, 43 Conn. Sup. 373, 381, 654 A.2d 392 (1994), aff'd, 232 Conn. 270, 654 A.2d 352 (1995).

The decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends on the circumstances of the particular case. In this case, the trial court, having reasonably found that Rando had such a personal interest, did not abuse its discretion in determining that he should have disqualified himself, notwithstanding the plaintiffs’ failure to object to his participation.

The judgment is affirmed.

In this opinion SULLIVAN, J., concurred.

LANDAU, J.,

concurring. I agree with the majority’s conclusion that the ex officio member of the board of selectmen should have disqualified himself but disagree with its analysis concerning that issue. Accordingly, I concur in the result but write separately to indicate my disagreement.

The judicial gloss applied to General Statutes § 22a-42 through Lurie v. Planning & Zoning Commission, 160 Conn. 295, 278 A.2d 799 (1971), and Ghent v. Zoning Commission, 220 Conn. 584, 600 A.2d 1010 (1991), teaches that § 22a-42 does not apply to a mayor or a first selectman who does not have a pecuniary or personal interest, other than the advancement of political ambitions. In the present case, however, the ex officio member of the board of selectmen does have a personal interest. Therefore, Ghent and Lurie cannot be applied in the present case, and the defendants’ reliance on Ghent and Lurie is misplaced.

As a result, we must look to the statute, which clearly states that “[n]o member . . . shall participate . . . upon any matter in which he is directly or indirectly interested in a personal or financial sense . . . .’’General Statutes § 22a-42 (c). Because the statute precludes any interested member from participation, the capacity in which the member serves is irrelevant. In the present case, Rando is a member, although ex officio, who has an interest. Therefore, the statute precludes his participation.

The statute is not ambiguous, and I would affirm the trial court’s decision merely by applying the statute.

      The commissioner of environmental protection has intervened as an appellee.

       The defendants also listed as an issue the denial of their motion to reargue. Because that issue was not briefed, however, it is deemed to be abandoned. See Stroiney v. Crescent Lake Tax District, 205 Conn. 290, 292 n.2, 533 A.2d 208 (1987).

       Section 3.2.2. of the charter of the town of East Lyme provides in relevant part that “[w]ithin thirty days after the Board of Selectmen takes office, “the first selectman shall designate each of the other members of the Board of Selectmen as an ex-officio member without vote, of one or more of the town boards. . . .”

       Commission member Brian Neylon, a member of the club, offered to disqualify himself and ultimately did so at the request of the club.