author: Norcott, J.

text:
    State of Connecticut v. Frances I. Stevens
    (9982)
    O’Connell, Norcott and Landau, Js.

      Argued October 29, 1991
    decision released March 3, 1992

      William W. Fisher, Jr., for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Peter McShane, deputy assistant state’s attorney, for the appellee (state).
   Norcott, J.

This case requires us to consider the narrow issue of whether a Connecticut police officer, after having made a lawful arrest in Connecticut for operating a motor vehicle under the influence of alcohol, may thereafter gather evidence in a neighboring state when the arrestee has been transported there for medical care.

The defendant, Frances I. Stevens, appeals from a judgment of conviction, rendered after a jury trial, of assault in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-60d, and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The defendant claims that the trial court improperly failed (1) to find that her arrest was illegal and (2) to suppress evidence resulting from two sobriety tests and two blood tests, thereby denying her federal and state constitutional rights to due process. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. On January 31,1990, the defendant, a Rhode Island resident, was driving her car accompanied by a dinner companion, Rose Buck, in the Pawcatuck section of Stoning-ton at about 11 p.m. on a poorly lighted, narrow hilly road. The defendant had been drinking wine at a restaurant earlier that evening with Buck and another friend. Behind the defendant’s car, Keith Beebe, an off duty Stonington police officer, was driving with a friend, Amos Steadman. The defendant’s car rounded a curve on the two lane road and Beebe lost sight of it. As he reached the other end of the curve, he saw that the defendant’s car had gone off the road and crashed into a tree. The car’s front end was heavily damaged.

While Steadman went to summon help, Beebe tried unsuccessfully to open the car doors as Buck screamed in pain. While talking with the defendant, Beebe noticed that her eyes were bloodshot and glassy, her speech slurred. He smelled alcohol on her breath, and she told him she had been drinking wine that evening. At about 11:07 p.m., two on duty Stonington police officers, Randy Holt and Louis Diamanti, arrived. They also spoke with the defendant, smelled alcohol on her breath, noticed her glassy eyes and concluded, as did Beebe, that she was under the influence of alcohol. The defendant also told Diamanti that she had been drinking wine that evening.

At about 11:15 p.m., an ambulance came to take the women to the Westerly Hospital in Westerly, Rhode Island, the closest medical facility. Buck had suffered serious chest and rib injuries, and internal bleeding. She underwent surgery for removal of her spleen and remained in intensive care for three weeks thereafter. The defendant, after being fitted with a neck brace, was removed from the car and placed in an ambulance. Before the ambulance left, however, Diamanti entered the vehicle and conducted a horizontal gaze nystagmus test to determine if the defendant was intoxicated. Because the results, along with his prior observations, led him to conclude that she was intoxicated, he then placed her under arrest at about 11:30 p.m. as she lay on a stretcher in the ambulance, waiting to leave for the hospital.

Diamanti then rode to the hospital in the ambulance with the defendant. In the emergency room, a doctor examined her and told Diamanti she was suffering from chest bruises. At 12:07 a.m. on February 1,1990, after the examination was completed, Diamanti gave the defendant Miranda warnings. She was coherent and sitting upright in a bed at this time. Diamanti then asked if he could perform two more sobriety tests, and the defendant agreed. He also read her Connecticut’s implied consent law and offered her the chance to contact an attorney, which she chose not to do. When he requested that she submit to two blood tests, she voluntarily consented. At 1 a.m. and again at 1:30 a.m., blood was taken by the defendant’s attending doctor, a physician licensed by the state of Connecticut. Diamanti then issued the defendant a summons. After the blood was sealed and placed in a kit Diamanti had brought from Stonington, he took it back to Connecticut for laboratory analysis. The first sample showed a blood alcohol level of .13; the second disclosed a .12 level. At trial, Sanders F. Hawkins, the state’s chief toxicologist, estimated that at the time of the collision, the defendant’s blood alcohol level was between .14 and .17.

I

The defendant claims that the trial court improperly failed to find that her arrest was illegal because Diamanti had no authority to act as a police officer in Rhode Island. We disagree.

The defendant relies on, inter alia, State v. Kuskowski, 200 Conn. 82, 85-86, 510 A.2d 172 (1986), and State v. Carroll, 131 Conn. 224, 230, 38 A.2d 798 (1944), for the proposition that General Statutes § 54-lf (a) and (b) do not permit Connecticut law enforcement officers to make warrantless arrests beyond the state’s borders. Because Diamanti placed the defendant under arrest in Connecticut and not in Rhode Island, such reliance is misplaced. Except for a single statement in her brief that she was issued a summons in Rhode Island, the defendant makes no claim that she was placed under arrest in Rhode Island. Moreover, she does not provide us with citation of authority, nor does our independent research disclose any, for the proposition that an arrest occurs where a summons is issued.

It is the generally accepted rule that the validity of an arrest is determined by the law of the state where the arrest was made. United States v. Di Re, 332 U.S. 581, 589, 68 S. Ct. 222, 92 L. Ed. 2d 210 (1948); Williams v. Adams, 436 F.2d 30, 32 (2d Cir. 1970). The validity of an arrest hinges on the existence of probable cause. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); State v. Lamme, 216 Conn. 172, 178, 579 A.2d 484 (1990). In Connecticut, probable cause is required before an arrest may be made for operating under the influence of alcohol. See State v. Gonzalez, 210 Conn. 446, 460, 556 A.2d 137 (1989) (written report, pursuant to General Statutes § 14-227b [c], must set forth grounds for police officer’s belief that probable cause existed to arrest for operating a motor vehicle while under the influence); Volck v. Muzio, 204 Conn. 507, 511, 529 A.2d 177 (1987) (license suspension hearing limited to determination of whether probable cause existed to arrest for operating under the influence).

“Probable cause, broadly defined, comprises such facts ‘as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe’ that criminal activity has occurred.” State v. Barton, 219 Conn. 529, 548, 594 A.2d 917 (1991), quoting Stone v. Stevens, 12 Conn. 218, 230, 30 A. 611 (1837). It is a flexible common sense standard that does not require the police officer’s belief to be either correct or more likely true than false. Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). Probable cause for an arrest is based on the objective facts available to the officer at the time of arrest, not on the officer’s subjective state of mind. State v. Kaplan, 20 Conn. App. 183, 186-87, 565 A.2d 11 (1989); see Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); State v. Copeland, 205 Conn. 201, 208 n.3, 530 A.2d 603 (1987). “ ‘There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information sufficient to justify the belief of a reasonable person that an offense has been or is being committed.’ ” State v. Kaplan, supra, 187, quoting State v. Copeland, supra, 213; Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979).

On the basis of the facts and circumstances as they appeared to Diamanti at 11:30 p.m. that night, the trial court properly found that probable cause existed to believe that the defendant had been operating under the influence of alcohol. Diamanti saw her heavily damaged car and spoke with her moments after the crash. He saw that her eyes were bloodshot and glassy, and he noticed her slurred speech and smelled alcohol on her breath. Further, the defendant told Diamanti that she had been drinking wine that evening, and had failed a sobriety test he conducted at the scene. Diamanti also had trustworthy information from Holt and Beebe, the off duty officer, who told him that they also had spoken with and observed the defendant moments before, and believed her to be under the influence of alcohol. We therefore conclude that the trial court properly found that Diamanti had lawfully arrested the defendant at the accident scene pursuant to General Statutes § 14-227a.

II

The defendant next claims that the trial court improperly refused to suppress the results of sobriety tests Diamanti performed at the hospital, as well as the results of laboratory tests on her blood, which was drawn at the hospital, thereby denying her right to due process.

In explaining why we believe that Diamanti’s gathering of evidence in Rhode Island was valid, we begin by examining his status when he acted in this case. As a general rule, police officers acting outside their jurisdictions do not act in their official capacity, nor do they have official power to arrest. People v. Vigil, 729 P.2d 360, 365-66 (Colo. 1986); State v. Hodgson, 57 Del. 383, 385, 200 A.2d 567 (1964); Nash v. State, 207 So. 2d 104, 106 (Miss. 1968); State v. Littlewind, 417 N.W.2d 361, 363 (N.D. 1987); State v. MacDonald, 260 N.W.2d 626, 627 (S.D. 1977); State v. Hart, 149 Vt. 104, 106, 539 A.2d 551 (1987); see generally annot., 34 A.L.R. 4th 328.

Police officers acting outside their jurisdictions, however, generally have the same powers of arrest as do private citizens. State v. McCullar, 110 Ariz. 427, 428, 520 P.2d 299 (1974); State v. O’Kelley, 211 N.W.2d 589, 595 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974); State v. Schienle, 218 Kan. 637, 640, 545 P.2d 1129 (1976); Commonwealth v. Gullick, 386 Mass. 278, 282, 435 N.E.2d 348 (1982); People v. Meyer, 424 Mich. 143, 154, 379 N.W.2d 59 (1985); Windschitl v. Commissioner of Public Safety, 355 N.W.2d 146, 149 (Minn. 1984); State Department of Public Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981); State v. Littlewind; supra; State v. Baton, 488 A.2d 696, 700 (R.I. 1985); State v. MacDonald, supra, 627; see also 1 Restatement (Second), Torts § 121, comment a; see generally 6A C. J.S., Arrest § 12; 5 Am. Jur. 2d, Arrest § 50.

Numerous federal courts also recognize this principle. See United States v. Hernandez, 715 F.2d 548, 551 (11th Cir. 1983) (per curiam); United States v. Ible, 630 F.2d 389, 393 (5th Cir. 1980); United States v. Swarovski, 557 F.2d 40, 46-47 (2d Cir. 1977), cert. denied, 434 U.S. 1045, 98 S. Ct. 889, 54 L. Ed. 2d 796 (1978); Ward v. United States, 316 F.2d 113, 116-18 (9th Cir.), cert. denied, 375 U.S. 862, 84 S. Ct. 132, 11 L. Ed. 2d 89 (1963); Monteiro v. Howard, 334 F. Sup. 411, 415 (D.R.I. 1971).

When a police officer, acting as a private person, makes a lawful extraterritorial arrest for operating under the influence of alcohol, evidence resulting from various types of sobriety and chemical tests can be admissible at trial. See Lofthouse v. Department of Motor Vehicles, 124 Cal. App. 3d 730, 734, 177 Cal. Rptr. 601 (1981) (blood alcohol test); People v. Gupton, 139 Ill. App. 3d 530, 534, 487 N.E.2d 1060 (1985); People v. Rowe, 128 Ill. App. 3d 721, 724-25, 471 N.E.2d 578 (1984); Windschitl v. Commissioner of Public Safety, supra, 149 (blood test); State Department of Public Safety v. Juncewski, supra, 321 (preliminary screening test); State v. Littlewind, supra, 363-64 (intoxilyzer test); Romo v. State, 577 S.W.2d 251, 252 (Tex. Crim. App. 1979) (breathalyzer test); see also State v. Russ, 480 N.E.2d 248, 251 (Ind. App. 1985) (evidence derived from officer’s observations); State v. Halvorson, 356 N.W.2d 376, 378 (Minn. App. 1984) (evidence derived from officer’s observations); accord State v. MacDonald, supra, 628 (law enforcement officers who make legitimate extraterritorial arrests as private citizens entitled to give implied consent warning).

Although the cases cited above involve evidence gathering by police officers who have made citizens’ arrests in adjoining jurisdictions within the same state, the same rationale permits police officers to enter another state, make arrests as private citizens and gather pertinent evidence. See, e.g., State v. McCullar, supra, 428-29 (Colorado police officers in Arizona); State v. O’Kelly, supra, 595 (Nebraska police officer in Iowa); Commonwealth v. Gullick, supra, 284 (Massachusetts state trooper in New Hampshire); State v. Baton, supra, 702 (Rhode Island police officer in Connecticut); State v. Bonds, 98 Wash. 2d 1, 14, 653 P.2d 1024 (1982) (en banc) (Washington police officers in Oregon); see also Stevenson v. State, 287 Md. 504, 523-24, 413 A.2d 1340 (1980) (District of Columbia police officer in Maryland).

No meaningful distinction exists between the arrests and evidence gathering in these cases, and the arrest and evidence gathering in a situation such as the one before us, where the only difference is that the arrest already has occurred in the officer’s home state and, by virtue of a medical emergency, he enters a neighboring state and immediately gathers vital evidence there. See State v. Slawek, 114 Wis. 2d 332, 336-37 n.1, 338 N.W.2d 120 (Wis. Ct. App. 1983).

The situation in this case is not unlike that in State v. MacDonald, supra. In MacDonald, a police chief’s request for chemical testing after he had made a lawful extraterritorial arrest for driving under the influence was found to be valid, since by statute the chemical analysis was required to be administered at the direction of a law enforcement officer. The Supreme Court of South Dakota determined that the chief of police fell within the definition of a law enforcement officer for this purpose, and concluded that an officer who had made a valid citizen’s arrest was qualified and legally authorized to give the implied consent warning. Id., 628.

The Illinois appellate courts reached similar results in People v. Gupton, supra, and People v. Rowe, supra. In People v. Gupton, supra, a police officer acting outside his jurisdiction was found to have made a citizen’s arrest for driving under the influence. The court held that under the state’s implied consent statute, he was authorized in his capacity as a law enforcement officer to request the defendant to submit to blood and urine tests, and that the results of such tests were admissible as evidence at trial. Id., 534. In People v. Rowe, supra, the court also held under similar circumstances that evidence derived from breathalyzer tests could be admissible at trial in the absence of any due process violations. Id., 724.

The same reasoning applies with equal force in this case. General Statutes § 14-227a (c) requires that any blood samples be drawn “by or at the direction of a police officer.” Here, although he was acting as a private citizen in Rhode Island, Diamanti nevertheless remained authorized in his capacity as a law enforcement officer to give the defendant Connecticut’s implied consent warning, conduct sobriety tests and request that she submit to blood testing. Although a police officer who enters another jurisdiction is no longer cloaked with his official authority, he does not cease to be a person. See State v. O’Kelly, supra. Evidence is no less competent because of its source. Nueslein v. District of Columbia, 115 F.2d 690, 692 (D.C. App. 1940); United States v. Lima, 424 A.2d 113, 121 (D.C. App. 1980).

At trial, neither the court nor counsel was able to locate legal authority that prohibited Diamanti’s actions in Rhode Island. The trial court therefore denied the defendant’s motion to suppress. We conclude that the trial court properly denied the motion and found that Diamanti’s actions in Rhode Island were entirely permissible under well established common law principles, and that the evidence derived therefrom was properly admissible at trial in the absence of any due process violations.

With respect to the defendant’s claim of a due process violation, we find it to be without merit. It is well established that the protection of the fourth amendment to the United States constitution is applicable to actions by governmental officers, but that it is not triggered by the actions of private people, however egregious they may be. United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980) (Blackmun, J., dissenting); Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S. Ct. 574, 65 L. Ed. 1048 (1921); but see State v. Brecht, 157 Mont. 264, 270, 485 P.2d 47 (1971) (fourth amendment protects the right to privacy and is violated whether the intrusion is governmental or private). The actions of private people withstand not only fourth amendment scrutiny, but due process analysis as well. See Colorado v. Connelly, 479 U.S. 157, 166, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986). By no fiction whatsoever could the state be deemed responsible for wholly private conduct, since it would be impossible to train citizens in general on the highly technical rules fashioned under the fourth amendment. United States v. Lima, supra, 118 n.2. By contrast, however, where the private person “in light of all the circumstances of the case must be regarded as having acted as an ‘instrument’ or agent of the state,” the fourth amendment is called into play. Coolidge v. New Hampshire, supra, 487; see United States v. Seidlitz, 589 F.2d 152, 158-59 (4th Cir. 1978), cert. denied, 441 U.S. 922, 99 S. Ct. 2030, 60 L. Ed. 2d 396 (1979).

Here, we believe that the fourth amendment clearly applies to Diamanti’s actions in Rhode Island. Although he no longer was cloaked with the official authority of a police officer when he entered Rhode Island, it would be disingenuous to think Diamanti was not acting as an agent or instrumentality of the police simply because he crossed the state line.

Because nothing in the record indicates that either the defendant’s arrest or the procurement of evidence in Rhode Island was orchestrated in such a manner as to intimidate or provoke her into giving her consent, we are not persuaded that she was denied due process. She was not threatened, tricked, cajoled or coerced. The trial court found that she was properly apprised of her rights, and that she thereafter knowingly and voluntarily consented to the sobriety tests and blood sampling.

We therefore hold that a Connecticut police officer, although not clothed with his official authority once he leaves the state, may gather evidence in another jurisdiction after having made a lawful arrest in Connecticut.

The continuing death, devastation and misery inflicted by intoxicated drivers, and the ever increasing emotional and financial costs of their behavior, which society must bear, have been well documented. See Quinnett v. Newman, 213 Conn. 343, 350 n.1, 568 A.2d 786 (1990) (Peters, C. J., dissenting); Shore v. Stoning- ton, 187 Conn. 147, 162 n.2, 444 A.2d 1379 (1982) (Peters, J., dissenting); Nelson v. Steffens, 170 Conn. 356, 364, 365 A.2d 1174 (1976) (Bogdanski, J., dissenting). This has led every community to share a unitary interest in the swift apprehension and punishment of intoxicated drivers. This often depends, however, on the prompt, yet lawful, recovery of highly evanescent evidence stemming from sobriety and blood testing. A Connecticut police officer, after making a valid arrest in this jurisdiction for operating under the influence of alcohol, should not be prevented from lawfully acquiring evidence resulting from sobriety and blood tests simply because medical necessity dictates that the arrestee be taken to an out-of-state hospital. Under the circumstances of this case, we decline to so constrict the police function of postarrest investigation such that the administration of justice becomes no more than an exercise in futility.

The judgment is affirmed.

In this opinion the other judges concurred.

       The Rhode Island hospital is about five to ten minutes from the accident scene. The nearest medical facilities in Connecticut, Lawrence and Memorial Hospital in New London, and Backus Hospital in Norwich, are about twenty-five to thirty minutes away.

       A gaze nystagmus test is a method of detecting whether a person is under the influence of alcohol by observing the movement of the eyes. State v. Henderson, 114 Idaho 293, 302 n.1, 756 P.2d 1057 (1988) (Walters, J., pro tern., dissenting).

       Diamanti charged her with operating a motor vehicle under the influence of alcohol in violation of General Statutes § 14- 227a. Prior to trial, by way of an amended information, the state added the charge of assault in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-60d.

        Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Diamanti had the defendant recite the alphabet and perform a finger count test.

       See General Statutes § 14-227b.

       The right of private citizens to make arrests dates from the Statutes of Winchester in 1285.13 Edw. I, St. 2, c. 2 (1285); M. Bassiouni, Citizen’s Arrest (1977) p. 9; H. Wilgus, “Arrest Without a Warrant,” 22 Mich. L. Rev. 541, 545-48 (1924). This statute imposed a duty to drop all work and join immediately in the pursuit of offenders.'
      The first reported decision in the United States involving a citizen’s right to make an arrest; Wrexford v. Smith, 2 Root 171 (1795); occurred in Connecticut. M. Bassiouni, supra, 27.

       Our conviction is bolstered by the views of a leading scholar in the field of extraterritorial police activity:
      “If the [extraterritorial] arrest [by a governmental agent] was in violation of search and seizure standards, its results would be subject to the exclusionary rule, but if the arrest was valid then its consequences would be admissible. However, a governmental agent cannot operate outside his or her jurisdiction and benefit from a lesser legal threshold, seizing evidence by means of a search incidental to arrest which would not withstand constitutional scrutiny. Any contrary position would in fact restore the ‘silver platter doctrine,’ which at one time enabled federal and state officers to operate outside their jurisdictional authority and to avoid constitutional limitations on admissible evidence.”
      M. Bassiouni, Citizen’s Arrest (1977), pp. 33-34.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    Randy Williams, Administrator (Estate of Marques Williams) v. Leon Chameides et al.
    (10080)
    O’Connell, Heiman and Cretella, Js.

      Argued January 17
    decision released March 3, 1992

      Joseph P. Kenny, with whom, on the brief, was Jay Melley III, for the appellant (plaintiff).

      Louis B. Blumenfeld, with whom, on the brief, were JohnF. Scully and William J. Scully, for the appellee (named defendant).
   Heiman, J.

The plaintiff in this medical malpractice action, Randy Williams, administrator of the estate of his son, Marques Williams, appeals from the trial court’s judgment in favor of the defendant Leon Chameides, a pediatric cardiologist. The plaintiff claims that the trial court improperly directed the jury to return a verdict in favor of the defendant. We affirm the trial court’s judgment.

The evidence presented at trial reasonably supports the following. The plaintiff’s decedent was born with a severe heart defect on June 12,1984. His heart was not connected to his pulmonary artery, which normally would have supplied blood to his lungs. As a result of the decedent’s heart condition, his parents consulted with Chameides, whose associate treated the condition by inserting a shunt to divert blood from the decedent’s subclavian artery to his lungs. Because this remedy, though the standard method of treating the condition, is inherently temporary, Chameides concluded that the shunt would probably have to be replaced as the youngster grew.

In June, 1985, Chameides indicated that the decedent would require a cardiac catheterization. After examining the decedent on January 24, 1986, Chameides recommended that the catheterization be performed within the next few weeks and that a new shunt be inserted sometime thereafter. The defendant performed the catheterization on January 29, 1986, and concluded that the existing shunt had narrowed, restricting the flow of blood to the pulmonary artery. He also found that collateral blood vessels which supplied additional blood to the pulmonary artery had formed since the decedent’s birth. Because the collateral vessels were providing nearly as much blood to the pulmonary artery as was the shunt, Chameides felt that the decedent did not require the insertion of a replacement shunt for survival. Nonetheless, he felt that a new shunt clearly was needed to relieve tiredness and cyanosis, a bluish skin coloration caused by insufficient oxygen in the blood. Because Chameides believed that the new shunt was not necessary to sustain the decedent’s life, he classified the operation as elective rather than as an emergency. Accordingly, he directed Karen Toce, a nurse he employed, to arrange an appointment to install a new shunt at a time within the next few months that was convenient for the decedent’s family, the surgeon and the pediatric cardiologist. Despite the wish of the decedent’s family that the defendant install the replacement shunt in late February, Toce scheduled the operation for April 23, 1986. The decedent died on March 31, 1986, after suffering heart failure.

The administrator of the decedent’s estate sued Chameides in March, 1988. Three distinct theories of negligence can be distilled from the complaint: (1) medical malpractice in failing to schedule and perform the second shunt operation soon enough, (2) respondeat superior based on Toce’s negligent failure to return the telephone calls of the decedent’s mother regarding the scheduling of the second shunt operation and to schedule the operation in accordance with the wishes of the decedent’s family and (3) medical malpractice in failing to inform the decedent’s parents of the risks associated with delaying the second shunt operation and of their option to obtain a second opinion regarding the second shunt operation.

At the jury trial, the plaintiff’s sole expert witness was Chameides himself. In addition to Chameides’ testimony, the plaintiff relied on a letter of condolence written by Chameides to the decedent’s parents following the decedent’s death. In the letter, the defendant expressed sympathy to the parents and speculated that the decedent died when the shunt suddenly closed, producing a sudden drop in the oxygen level of the decedent’s blood. He further surmised “[wjould it have made any difference had we performed the shunt sooner? I must come to the sad conclusion that it probably would have.”

At the conclusion of the plaintiff’s case-in-chief, the defendant orally moved for a directed verdict. After hearing argument on the motion, the court instrúcted the jury that although they might have been able to find that Chameides caused the decedent’s death, the plaintiff had offered no evidence regarding the nature or breach of the defendant’s duty of care. The court then instructed the jury to retire to the jury room and elect a foreperson to sign a directed verdict form for the defendant. The jury complied, and the court accepted the verdict. After denying the plaintiff’s motion to set aside the verdict, the court rendered judgment for the defendant.

The plaintiff first claims that the trial court improperly determined that he had failed to produce expert testimony establishing either the nature or the breach of the defendant’s duty of care. We disagree.

A directed verdict, while disfavored, should be ordered whenever a jury could reach no other conclusion without speculation. See Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Burke v. West Hartford, 147 Conn. 149, 151-52, 157 A.2d 757 (1960); Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990). In reviewing the trial court’s directing and then refusing to set aside a verdict, we consider the evidence in the light most favorable to the plaintiff. Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 102, 586 A.2d 614, cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991); Campbell v. Pommier, 5 Conn. App. 29, 31-32, 496 A.2d 975 (1985).

“In order to prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.” Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., supra, 102-103. Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard. Mather v. Griffin Hospital, 207 Conn. 125, 130-31, 540 A.2d 666 (1988); Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952 (1981). The plaintiff may rely on the defendant’s testimony to meet its burden of producing positive evidence of an expert nature from which the jury could reasonably and logically conclude that the defendant was negligent. Snyder v. Pantaleo, 143 Conn. 290, 294, 122 A.2d 21 (1956).

The plaintiff claims not that Chameides negligently performed a procedure, but that he negligently failed to perform the shunt operation soon enough. The plaintiff offered no expert testimony, however, regarding the “degree of care, skill and diligence which physicians in the same general line of practice ordinarily possess and exercise in similar cases.” Cross v. Huttenlocher, supra. Indeed, the sole evidence on the subject came when the defendant, during examination by his attorney, testified that the prevailing standard of care required only that the second shunt be installed within a few months of the catheterization and that he did not deviate from that standard.

The plaintiff’s contention that the jury reasonably could have inferred that the need for a second shunt was immediate from the defendant’s statement that a second shunt was clearly needed contains two fatal flaws. First, even if the plaintiff stated that he believed that a second shunt should be installed immediately, the jury could not infer from this that the prevailing medical practice was to install the shunt immediately. See Dams v. Virginian R. Co., 361 U.S. 354, 357-58, 80 S. Ct. 387, 4 L. Ed. 2d 366 (1960); Evans v. Bernhard, 23 Ariz. App. 413, 416, 533 P.2d 721 (1975); Montana Deaconess Hospital v. Gratton, 169 Mont. 185, 190, 545 P.2d 670 (1976). Second, the defendant’s statement that a second shunt was clearly needed contained no temporal component. The jury could not have inferred one without speculating. While we remain mindful that the plaintiff need not elicit a specific expression of opinion that the defendant was negligent; Snyder v. Pantaleo, supra, 294-95; Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927); the plaintiff must produce sufficient expert evidence to allow the jury to determine the applicable standard of care without speculation. Because the plaintiff failed to sustain this burden, the trial court properly removed this issue from the jury’s consideration. See Cross v. Huttenlocher, supra.

The plaintiff next contends that the trial court incorrectly determined that expert testimony was necessary to support his claim that Chameides is liable in respondeat superior for the negligent actions of his employee, Toce, in scheduling the second shunt operation. He argues that because the applicable duty of care in a claim based on respondeat superior is that owed by Toce, and expert evidence is unnecessary to establish Toce’s duty, the trial court improperly directed a verdict based on the lack of expert evidence. The plaintiff’s claim that Toce was negligent in scheduling the appointment, however, presupposes that Toce reasonably should have foreseen that harm would result from her actions. Pisel v. Stamford Hospital, 180 Conn. 314, 333, 430 A.2d 1 (1980). Because, as we stated earlier, the jury could not have so concluded without resorting to speculation, the trial court properly directed a verdict as to this claim.

The plaintiff has not briefed any claim pertaining to the third theory of liability set forth in his complaint, that the defendant negligently failed to inform the decedent’s parents regarding the risk of delaying the second shunt operation and their option of obtaining a second opinion regarding the second shunt operation. Accordingly, any claim that the trial court improperly directed a verdict as to this claim has been abandoned. See Practice Book § 4065; State v. Anthony, 24 Conn. App. 195, 210, 588 A.2d 214, cert. dismissed, 218 Conn. 911, 591 A.2d 813, cert. denied, U.S. , 112 S. Ct. 312, 116 L. Ed. 2d 254 (1991).

The plaintiff further claims that the trial court improperly restricted the presentation of his case by limiting his interpretation of the word “convenience.” In a colloquy that occurred outside the jury’s presence, the trial court questioned the plaintiff’s counsel regarding the factual basis for his respondeat superior claim. The attorney indicated that by failing to schedule the second shunt operation according to the wishes of the decedent’s parents, Toce violated the defendant’s instruction to schedule the operation for a time that was convenient. The following exchange then occurred:

“The Court: Don’t fudge those two words. What they want and what is convenient for them are two very distinct things.

“[Plaintiff’s Attorney]: What other yardstick would one employ if it’s the convenience of the family?

“The Court: I’ll tell you what other yardstick you can employ. Vacation, which they knew about, a back operation, the school scheduling. There are a lot of things that change ‘want’ to ‘convenient.’ And I don’t think we have any evidence that it was ever expressed to anybody as to what the convenient date was that the plaintiffs wanted.”

We will not consider the merits of this claim. Although the plaintiff’s attorney clearly disagreed with the trial court’s position, he failed either to state a legal ground for his objection or to except to the trial court’s ruling, if any. See Practice Book § 288; Lombardi v. Groton, 26 Conn. App. 157, 161, 599 A.2d 388 (1991). As a result, he has not preserved this claim for appellate review. Id.

In light of our conclusion that the plaintiff failed to establish the defendant’s duty of care, an essential element of his cause of action; see Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., supra; we need not address his claim that the trial court improperly concluded that he did not establish the element of causation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff instituted the underlying action against Chameides and Hartford Hospital. The case was withdrawn as to Hartford Hospital on July 10,1990. The plaintiff also instituted a separate action against Paul Preissler seeking damages for alleged medical malpractice. While the actions against Chameides and Preissler were joined for purposes of trial, the case against Preissler was withdrawn before the trial’s conclusion. Thus, Chameides is the sole appellee.

       The letter was admitted as a full exhibit.

       The plaintiff does not claim that Chameides was so grossly negligent that expert testimony was unnecessary. See Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982) (expert testimony not necessary where “there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence”).


author: Per Curiam.

text:
    Thomas P. Rust v. Rudolph A. DiPietro
    (9403)
    Daly, Laveey and Heiman, Js.
    Argued September 12
    decision released October 1, 1991

      Edward W. Case, for the appellant (defendant).

      Daniel H. Kennedy, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Basil Suer
    (9281)
    Foti, Landau and Heiman, Js.
    Argued September 12
    decision released October 1, 1991

      Cindy J. Arenberg and Rhonda J. Tobin, special public defenders, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Warren Maxwell, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Fleet Bank of Connecticut v. Dulara Building and Investment Corporation et al.
    (10226)
    Daly, Landau and Heiman, Js.
    Argued September 25
    decision released October 15, 1991

      Joseph E. Milardo, Jr., for the appellants (named defendant et al.).

      Gerald L. Garlick, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Glastonbury Bank and Trust Company v. Lewis Associates I et al.
    (10113)
    Daly, Landau and Heiman, Js.
    Argued September 25
    decision released October 15, 1991

      PaulR. Kraus, for the appellants (named defendant et al.).

      D. Jefferson Blackwell, Jr., for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Frank Compolattaro, Jr. v. Richard Compolattaro et al.
    (9613)
    O’Connell, Lavery and Ripley, Js.
    Argued September 25
    decision released October 15, 1991

      Rhonna W. Rogol, with whom, on the brief, was Robert M. Wechsler, for the appellants (defendants).

      John Wayne Fox, with whom, on the brief, was Susan L. Stratton, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Hranoosh Barclay v. Huntington Barclay
    (9535)
    Norcott, Heiman and Cretella, Js.
    Argued September 24
    decision released October 22, 1991

      William C. Bieluch, Jr., for the appellant (defendant).

      Victoria deToledo, with whom, on the brief, was Joseph N. Varón, for the appellee (plaintiff).
   Per Curiam.

The defendant appeals following the trial court’s action finding him in contempt. The defendant attempts to challenge a portion of the dissolution decree requiring him to execute a will naming the plaintiff and the parties’ two minor children as sole beneficiaries of his estate. Our review of the record and counsel’s representations at oral argument lead us to conclude that the trial court in the contempt proceeding, in fact, imposed no contempt order relating to the will. Since a contempt order is the vehicle by which this appeal comes to us, it is clear that, there being no contempt order on the issue before us, there can be no appeal on that issue.

The appeal is dismissed.


text:
    Marilyn Fortin v. John Cyrus et al.
    (9793)
    Daly, Lavery and Heiman, Js.
    Argued September 27
    decision released October 22, 1991

      Allen A. Marko, for the appellant (defendant Robert Elderkin).

      Michael A. D’Amico, for the appellee (plaintiff);
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Samuel Davis
    (9617)
    Daly, Foti and Lavery, Js.
    Argued October 2
    decision released October 22, 1991

      Neal Cone, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Vicky O’Donnell, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Catherine T. Sparks v. Gertrude Koshefsky et al.
    (9706)
    Norcott, Lavery and Landau, Js.
    Argued September 30
    decision released October 22, 1991

      Maria L. Hampton, with whom, on the brief, was Walter R. Hampton, Jr., for the appellant (named defendant).

      Francis C. Vignati, Jr., for the appellee (plaintiff).
   Per Curiam.

The named defendant, Gertrude Koshefsky, appeals from a decision of the trial court declaring title to the real estate at issue to be in the plaintiff, Catherine T. Sparks.

While much of the trial testimony was disputed, it is axiomatic that the credibility of witnesses, the finding of facts, and the drawing of inferences are all within the trier’s province. “It is futile to assign error involving the weight of testimony or the credibility of witnesses.” Grayson v. Grayson, 4 Conn. App. 275, 293, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987); Piantedosi v. Floridia, 186 Conn. 275, 277, 440 A.2d 977 (1982). This court cannot retry the facts or pass on the credibility of witnesses. Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); State v. Speers, 17 Conn. App. 587, 592, 554 A.2d 769, cert. denied, 211 Conn. 808, 559 A.2d 1142, cert. denied, 493 U.S. 851, 110 S. Ct. 150, 107 L. Ed. 2d 108, cert. denied sub nom. George v. Connecticut, 493 U.S. 893, 110 S. Ct. 241, 107 L. Ed. 2d 192 (1989). The named defendant has failed to demonstrate that the trial court’s factual findings were clearly erroneous or that its decision was otherwise erroneous in law. Practice Book § 4061; see U.S. Fidelity & Guaranty Co. v. K. J. Enterprises, Inc., 19 Conn. App. 806, 563 A.2d 1386, cert. denied, 212 Conn. 818, 565 A.2d 538 (1989), cert. denied, 493 U.S. 1088, 110 S. Ct. 1155, 107 L. Ed. 2d 1058 (1990). Moreover, our own review of the record discloses that the evidence was sufficient to support the trial court’s factual finding.

The judgment is affirmed.

       Gertrude Koshefsky is the only one of the three original defendants who has pursued the present appeal.


text:
    Milton Tyson, Jr. v. Department of Correction
    (9952)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 30
    decision released October 22, 1991

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

      Michael J. Lanoue, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Alex Del Vecchio et al. v. Stonehill Associates, Inc.
    (9787)
    O’Connell, Landau and Heiman, Js.
    Argued October 3
    decision released October 22, 1991

      William F. Gallagher, with whom, on the brief, were Sheldon A. Messinger and Thomas B. Pursell, for the appellant (defendant).

      Vincent T. McManus, Jr., for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Helen C. Flaws et al. v. Bruce D. Tyler et al.
    (9840)
    Daly, Foti and Lavery, Js.
    Submitted on briefs October 3
    decision released October 22, 1991

      James W. Sherman, for the appellants (defendant Robert Blake et al.).

      John H. Parks, for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Lenwood Saunders
    (9564)
    O’Connell, Norcott and Heiman, Js.
    Argued September 27
    decision released October 22, 1991

      Beth A. Merkin, assistant public defender, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Victor Holloway
    (9868)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued September 30
    decision released October 29, 1991

      Ralph C. Crozier, with whom, on the brief, was Allan Friedman, law student intern, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Frank McQuade, senior assistant state’s attorney, for the appelle (state).
   Per Curiam.

The state concedes that the trial court lacked jurisdiction to order the defendant’s property forfeited because of the state’s failure to initiate proper proceedings under the drug forfeiture statute. General Statutes § 54-36a et seq.

The judgment is reversed and the case is remanded with direction to grant the defendant’s motion for the return of the seized property.


text:
    State of Connecticut v. James McClinden
    (9658)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued October 4
    decision released October 29, 1991

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

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Robert J. O’Brien, supervisory assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Peter Rosow v. Rus Hil Landscape Contracting, Inc.
    (10063)
    Daly, Norcott and Landau, Js.
    Argued October 30
    decision released November 19, 1991

      William R. Kinloch, for the appellant (plaintiff).

      Cynthia A. Blair, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Joseph D. Celano v. J. William Burns, Commissioner of Transportation
    (9948)
    Daly, Norcott and Landau, Js.
    Argued October 30
    decision released November 19, 1991

      Joseph D. Celano, pro se, the appellant (plaintiff).

      Lawrence G. Widem, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Foxwood Master Condominium Association, Inc., et al. v. Planning and Zoning Board of Milford
    (9395)
    (9396)
    Dupont, C. J., Landau and Heiman, Js.
    Argued November 4
    decision released November 19, 1991

      Robert L. Julianelle, with whom, on the brief, were Fernando F. de Arango, and Patrick W. Frazier, for the appellants (plaintiffs).

      James W. Walsh, for the appellees (defendant Louis J. D’Amato et al.).
   Per Curiam.

Our review of the record and briefs, and the oral arguments presented convince us that the petition for certification was improvidently granted.

The judgments are affirmed.


text:
    Paul Verses v. Athena Verses
    (9857)
    Dupont, C. J., O’Connell and Lavery, Js.
    Argued October 28
    decision released November 19, 1991

      John V. Bologna, for the appellant (plaintiff).

      Andrew P. Nemiroff, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Alan Ufland v. Annette Velardi et al.
    (10097)
    Dupont, C. J., Landau and Heiman, Js.
    Argued November 4
    decision released November 19, 1991

      Frank B. Velardi, Jr., with whom was Francis E. Lamboley, for the appellant (named defendant).

      Richard F. Connors, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Mary Sharif v. Karim Sharif
    (10111)
    Daly, Foti and Heiman, Js.
    Argued October 29
    decision released November 19, 1991

      Linda Babcock, with whom, on the brief, was Lubbie Harper, Jr., for the appellant (defendant).

      Edward J. Dolan, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Robert Epstein et al. v. Greco Auto Parts, Inc., et al.
    (9833)
    Daly, Foti and Heiman, Js.
    Argued October 28
    decision released November 19, 1991

      Jonathan Perkins, for the appellants (plaintiffs).

      Frederick M. VoUono, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Mario Paul Mikolitch
    (10149)
    Daly, Foti and Heiman, Js.
    Argued October 28
    decision released November 19, 1991

      Mario Paul Mikolitch, pro se, the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, state’s attorney, and Richard Preston, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Valentino Ciccone v. Administrator, Unemployment Compensation Act et al.
    (10035)
    O’Connell, Lavery and Heiman, Js.
    Argued November 6
    decision released November 26, 1991

      Anthony M. Modugno, with whom, on the brief, was Dominick Modugno, for the appellant (plaintiff).

      Thomas P. Clifford III, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles A. Overend, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Thomas J. DeMarchis v. Dolores R. DeMarchis
    (9954)
    O’Connell, Norcott and Lavery, Js.
    Argued November 5
    decision released November 26, 1991

      James R. Smith, for the appellant (plaintiff).

      Richard J. Joseph, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Nicholas Conti v. Alfred Sistakauskas Alfred Sistakauskas v. Nicholas Conti
    (10119)
    Nokcott, Foti and Doyle, Js.
    Argued November 6
    decision released November 26, 1991

      Bryan F. Meccariello, for the appellant (defendant in the first case, plaintiff in the second case).

      Kenneth John Laska, for the appellee (plaintiff in the first case, defendant in the second case).
   Per Curiam.

The judgment is affirmed.


text:
    Robert Elderkin v. Water Pollution Control Board of the Borough of Naugatuck
    (9753)
    O’Connell, Norcott and Heiman, Js.
    Argued November 7
    decision released November 26, 1991

      Elliott S. Labovitz, for the appellant (plaintiff).

      Lana M. Glovach, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Dorothy A. Isola v. Geraldine McDermott
    (9807)
    O’Connell, Norcott and Heiman, Js.
    Argued November 7
    decision released November 26, 1991

      James M. S. Ullman, for the appellant (defendant).

      Charles K. Thompson, with whom, on the brief, was Jeremiah O’Connor, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    William G. Schmid et al. v. Stephen Doerrer et al. Stephen Doerrer et al. v. William G. Schmid et al.
    (9858)
    O’Connell, Norcott and Heiman, Js.
    Argued November 7
    decision released December 3, 1991

      Geraldine Battistoli, for the appellants (defendants in the first case, plaintiffs in the second case).

      EdwardS. Domnarski, Jr., for the appellees (plaintiffs in the first case, defendants in the second case).
   Per Curiam.

Our review of the record, briefs and oral argument convinces us that the conclusions reached by the attorney trial referee and accepted by the trial court are more than adequately supported by the subordinate facts found. Clark v. Drska, 1 Conn. App. 481, 484-85, 473 A.2d 325 (1984).

The judgment is affirmed.


text:
    Kevin Matthews et al. v. L. Douglas Nolan
    (9933)
    O’Connell, Lañdau and Heiman, Js.
    Argued November 4
    decision released December 3, 1991

      John S. Bennet, for the appellant (defendant).

      Ralph P. Dupont, for the appellees (plaintiffs).
   Per Curiam.

The defendant, L. Douglas Nolan, appeals from the judgment of the trial court in a quiet title action in which the trial court granted the plaintiff title in a strip of land serving as a common boundary between the plaintiff’s and the defendant’s properties. On appeal, the defendant argues that the trial court improperly interpreted the evidence at trial. Accordingly, he asks us to interpret the evidence presented at trial independently and to reverse the decision of the trial court. We decline to undertake such a review.

Although much of the trial testimony was disputed, the credibility of witnesses, the findings of facts and the drawing of inferences are all within the province of the trier of fact. Grayson v. Grayson, 4 Conn. App. 275, 293, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 211, 520 A.2d 225 (1987). “It is futile to assign error involving the weight of testimony or the credibility of witnesses.” Slattery v. Maykut, 176 Conn. 147, 149, 405 A.2d 76 (1978). This court can neither retry the facts in order to make our own findings nor pass on the credibility of witnesses; Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984); Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); “but can only review such findings to determine whether they could legally, logically and reasonably be found thereby establishing that the trial court could reasonably conclude as it did.” Zolan, Bernstein, Dworken & Klein v. Milone, 1 Conn. App. 43, 47, 467 A.2d 938 (1983).

The judgment is affirmed.


text:
    Dunhill Personnel of New Haven, Inc. v. Jonathan Einhorn
    (9949)
    O’Connell, Laveey and Landau, Js.
    Argued on November 1
    decision released December 3, 1991

      David R. Sirois, for the appellant (plaintiff).

      Nancy J. Vavra, with whom, on the brief, was Jonathan J. Einhorn, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Northeastern University v. Lorretta Robinson
    (9997)
    Daly, O’Connell and Foti, Js.
    Submitted on briefs December 2
    decision released December 17, 1991

      Lorretta Robinson, pro se, the appellant (defendant) filed a brief.

      Norbert W. Church, Jr., filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Bonnie M. O’Neill v. Joseph P. Novak, Jr.
    (9735)
    Norcott, Lavery and Klaczak, Js.
    Argued December 2
    decision released December 17, 1991

      Karen L. Williams, for the appellant (plaintiff).

      Joseph J. Novak, Jr., pro se, the appellee (defendant)..
   Per Curiam.

The judgment is affirmed.


text:
    Allstate Insurance Company v. Kristina DeCapua et al. Hartford Accident and Indemnity Company v. Kristina DeCapua
    (10052)
    Foti, Landau and Heiman, Js.
    Argued December 3
    decision released December 17, 1991

      Barry N. Silver, with whom, on the brief, was Alan E. Silver, for the appellant (named defendant).

      Carla Ottaviano, for the appellee (plaintiff in the second case).
   Per Curiam.

The judgment is affirmed.


text:
    New Haven Investments, Inc. v. Ernest Oxford et al.
    (10411)
    Daly, O’Connell and Foti, Js.
    Argued December 2
    decision released December 17, 1991

      James J. Nugent, for the appellant (defendant Vanessa McCray).

      William F. Gallagher, with whom, on the brief, were Wilbur J. Land and Cynthia C. Bott, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Claudette Tremblay v. Henry Tremblay
    (10160)
    Norcott, Lavery and W. Sullivan, Js.
    Argued December 2
    decision released December 17, 1991

      Carlo Forzani, with whom was Carol Widing, for the appellant (defendant).

      Jonathan W. A. Ruhe, with whom, on the brief, was Barbara J. Ruhe, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut Bank and Trust Company, Trustee v. Stanley Breslow
    (10145)
    Daly, Lavery and Landau, Js.
    Argued December 11
    decision released December 31, 1991

      Lee N. Johnson, for the appellant (plaintiff).

      Frank R. Borowy, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Richard J. Fricke v. Carol B. Fricke
    (9981)
    Dupont, C. J., O’Connell and Heiman, Js.
    Argued December 10
    decision released December 31, 1991

      Richard J. Fricke, pro se, the appellant (plaintiff).

      Edward M. Kweskin, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Zef Hassane v. Gerald Lawrence
    (9650)
    Daly, Lavery and Landau, Js.
    Argued December 9
    decision released December 31, 1991

      Prescott W. May, with whom, on the brief, was Steven P. Kulas, for the appellant-appellee (defendant).

      Stephen R. Beilis, for the appellee-appellant (plaintiff).
   Per Curiam.

The judgment is reversed and the case is remanded for further proceedings in accordance with Practice Book § 443.


text:
    Robert Sawyer et al. v. Stonington on the River, Inc.
    (10299)
    Dupont, C. J., Foti and Heiman, Js.
    Argued December 11
    decision released December 31, 1991

      Leon M. Kaatz, for the appellants (plaintiffs).

      Judith D. Meyer, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Ralph Esposito et al. v. Daniel V. Presnick Daniel V. Presnick v. Ralph Esposito et al.
    (10083)
    Daly, Lavery and Landau, Js.
    Argued December 9
    decision released December 31, 1991

      Daniel V. Presnick, pro se, the appellant (defendant in the first case, plaintiff in the second case).

      JohnR. Williams, for the appellees (plaintiffs in the first case, defendants in the second case).
   Per Curiam.

The judgment is affirmed.


text:
    C.S.R. Associates v. 191 Wooster Street Ltd. Partnership et al.
    (10173)
    Daly, Landau and Heiman, Js.
    Argued December 4
    decision released December 31, 1991

      Noah Eisenhandler, with whom, on the brief, was Frank J. Kolb, Jr., for the appellant (plaintiff).

      David C. Pite, with whom, on the brief, was James S. Brownstein, for the appellee (defendant Ruthann L. Williams).
   Per Curiam.

The judgment is affirmed.


text:
    New Canaan Bank and Trust Company v. Nicholas D. Cerretani III et al.
    (10205)
    O’Connell, Norcott and Lavery, Js.
    Argued December 3
    decision released December 31, 1991

      Norton P. Feinstein, for the appellants (defendants).

      Todd H. Lampert, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    John Hychko v. Thomas DiDomizio
    (10127)
    Daly, Lavery and Landau, Js.
    Argued December 9
    decision released December 31, 1991

      Robert P. Hanahan, for the appellant (plaintiff).

      F. Herbert Gruendell, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Oakland Heights Mobile Park, Inc. v. James Simon
    (10089)
    Daly, Norcott and Landau, Js.
    Argued December 10
    decision released December 31, 1991

      Edward E. Moukawsher, for the appellant (plaintiff).

      James M. Simon, pro se, the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Silverberg, Marvin and Swaim, P.C. v. Henry Malachowski
    (9709)
    Daly, Foti and Heiman, Js.
    Argued December 9
    decision released December 31, 1991

      Vincent M. Simko, with whom, on the brief, was Henry Malachowski, pro se, for the appellant (defendant).

      David S. Golub, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    City of Norwalk v. Virginia Guimond et al.
    (10003)
    Dupont, C. J., Daly and Lavery, Js.
    Argued December 11, 1991
    decision released January 7, 1992

      Louis Guimond, pro se, with whom, on the brief, was Virginia Guimond, pro se, the appellants (defendants).

      M. Jeffry Spahr, deputy corporation counsel, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Stephen C. McCullough
    (10043)
    Dupont, C. J., Landau and Heiman, Js.
    Argued December 13, 1991
    decision released January 7, 1992

      Stephen C. McCullough, pro se, the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Antonia Carabillo, deputy assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Joseph R. Ganem v. Jessie M. Ganem
    (9712)
    Foti, Landau and Heiman, Js.
    Argued December 13, 1991
    decision released January 7, 1992

      Joseph R. Ganem, pro se, the appellant (plaintiff.

      Jeffrey A. Lang, with whom was Jeffrey D. Mickelson, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Anna L. Smith v. Richard F. Smith
    (10222)
    Dupont, C. J., Norcott and Foti, Js.
    Argued December 13, 1991
    decision released January 7, 1992

      Gerald A. Roisman, with whom, on the brief, was Jody M. Kelly, for the appellant (defendant).

      J. Patrick Dwyer, with whom, on the brief, was Timothy Fitzgerald, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Jacqueline M. Whiting et al. v. Planning and Zoning Commission of the Town of North Branford
    (10313)
    Norcott, Foti and Lavery, Js.
    Argued December 12, 1991
    decision released January 7, 1992

      Michael R. Caporale, Jr., for the appellants (plaintiffs).

      John M. Gesmonde, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    John F. Brady v. Jana S. Brady
    (10059)
    Daly, O’Connell and Nokcott, Js.
    Argued January 6
    decision released January 28, 1992

      William H. Cashman, with whom, on the brief, was Tara L. Knight, for the appellant (plaintiff).

      James R. Greenfield, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Northeast Savings, F.A. v. Kenneth Schwartz et al.
    (10502)
    Daly, O’Connell and Norcott, Js.
    Argued January 6
    decision released January 28, 1992

      Kerry M. Wisser, with whom were Jennifer Jaff and, on the brief, Richard P. Weinstein, for the appellants (defendants).

      Gerald L. Garlick, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    State of Connecticut v. Nunzio Parente
    (10019)
    Norcott, Lavery and Heiman, Js.
    Argued January 7
    decision released January 28, 1992

      Milo J. Altschuler, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Francis McQuade, assistant state’s attorney, and, on the brief, Mary Galvin, state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Leslie Carothers, Commissioner of Environmental Protection v. Kement and Son Construction, Inc., et al.
    (10337)
    Daly, O’Connell and Norcott, Js.
    Argued January 10
    decision released January 28, 1992

      James W. Sherman, for the appellants (defendants).

      Robert B. Teitelman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Robert Dinwoodie et al. v. Aetna Casualty and Surety Company
    (10158)
    Dupont, C. J., Norcott and Foti, Js.
    Argued December 13, 1991
    decision released January 28, 1992

      Raymond T. Trebisacci, for the appellants (plaintiffs).

      Lorinda S. Coon, with whom, on the brief, was Eugene A. Cooney, for the appellee (defendant).
   Per Curiam.

We have fully considered the plaintiffs’ claims and have thoroughly reviewed the parties’ briefs as well as the record of the case. We fail to recognize how the matters of American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), and Cov enant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991), are distinguishable, and accordingly find that they control the present case.

The judgment is affirmed.


text:
    Jeremiah J. Peters v. Department of Motor Vehicles et al.
    (10489)
    Daly, O’Connell and Norcott, Js.
    Argued January 10
    decision released January 28, 1992

      Douglas T. Barall, for the appellant (defendant).

      Robert T. Morrin, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (state).
   Per Curiam.

The judgment is affirmed.


text:
    Reitman Personnel Services, Inc. v. Professional Products of Connecticut, Inc.
    (10454)
    Dupont, C. J., Foti and Lavery, Js.
    Argued January 8
    decision released January 28, 1992

      Thomas F. Brown, for the appellant (plaintiff).

      Bruce S. Beck, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Angelita Tolly v. Department of Human Resources
    (10415)
    Foti, Heiman and Freedman, Js.
    Argued January 13
    decision released January 28, 1992

      Ann McClure, for the appellant (plaintiff).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant).
   Per Curiam.

The result in this case is controlled by three prior decisions of this court: Shapiro v. Carothers, 23 Conn. App. 188, 579 A.2d 583 (1990); Senie v. Carothers, 22 Conn. App. 253, 576 A.2d 1312 (1990); and DelVecchio v. Department of Income Maintenance, 18 Conn. App. 13, 555 A.2d 1007 (1989).

Despite the invitation by the plaintiff to revisit this issue, we decline to do so. Nothing in these cases convinces us that they were wrongfully decided, decided on the basis of a flawed analysis, or represent aberrant appellate decisions as claimed in the appellant’s brief.

The judgment is affirmed.


text:
    New Haven Savings Bank v. Orange Condo Group et al.
    (10263)
    Foti, Hetman and Freedman, Js.
    Argued January 13
    decision released January 28, 1992

      David C. Pite, for the appellants (named defendant et al.).

      John A. Keyes, with whom, on the brief, were Martin M. Looney and Stephan Hilcoff, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Pompei Restaurant, Inc., et al. v. Department of Liquor Control et al.
    (10146)
    Daly, Foti and Lavery, Js.
    Argued January 14
    decision released January 28, 1992

      Frank A. Leone, with whom, on the brief, was Dennis C. LaGanza, for the appellants (plaintiffs).

      Robert F. Vacchelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Norwalk Twin Towers, Inc. v. Davidson and Naylor et al.
    (10174)
    O’Connell, Heiman and Cretella, Js.
    Argued January 17
    decision released February 4, 1992

      Michael Kurs, with whom, on the brief, were Mary Alice Leonhardt, and Elliot B. Pollack, for the appellant (plaintiff).

      Matthew B. Woods, for the appellee (defendant Peter L. Leepson).
   Per Curiam.

The judgment is affirmed.


text:
    Catherine Barber v. Ann Houle
    (10279)
    O’Connell, Norcott and Lavery, Js.
    Argued January 15
    decision released February 4, 1992

      Zbigniew S. Rozbicki, for the appellant (plaintiff).

      James G. Kelly, with whom, on the brief, was Claudia A. Baio, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Oxford Paint and Hardware, Inc. v. Hubert Baxter et al.
    (10405)
    Landau, Heiman and Freedman, Js.
    Argued January 14
    decision released February 4, 1992

      Raymond A. Desautels III, with whom, on the brief, were Ralph C. Crozier and Allan Friedman, certified legal intern, for the appellant (plaintiff).

      Frederick W. Krug, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Robert Fromer v. Country Club of New England Group Limited Partnership et al.
    (10247)
    Daly, O’Connell and Norcott, Js.
    Argued January 10
    decision released February 4, 1992

      Robert Fromer, pro se, the appellant (plaintiff).

      Scott R. Chadwick, with whom, on the brief, was Thomas J. Riley, for the appellees (named defendant et al.).

      Maryann Diaz, for the appellee (defendant conservation commission of the town of East Lyme).
   Per Curiam.

If we assume, arguendo, that the plaintiff has standing, the limited issue properly before us is whether the trial court correctly found that there was no conduct that had or was reasonably likely to have the effect of unreasonably polluting, impairing or destroying the public trust in the air, water or other natural resources of the state within the meaning of General Statutes § 22a-19. This presents a question of fact that the trial court correctly resolved in favor of the defendants.

The judgment is affirmed.


text:
    Michael Licamele et al. v. Zoning Commission of the City of Bridgeport
    (10028)
    Dupont, C. J., Foti and Freedman, Js.
    Argued January 6
    decision released February 4, 1992

      John J. Luckart, Jr., with whom, on the brief, was John J. Luckart, for the appellant (named plaintiff).

      Barbara Brazzel-Massaro, city attorney, for the appellee (named defendant).

      David P. Lasnick, for the appellees (intervening defendant Joel Schiavone et al.).
   Per Curiam.

This is an appeal by the named plaintiff, Michael Licamele, from a judgment of the trial court affirming the actions of the defendant zoning commission in adopting an amendment to the Bridgeport zoning regulations. Licamele challenged the amendment on the basis of the alleged participation of a commissioner at a public hearing and executive session after she had disqualified herself from participating in the proceedings because of a potential conflict of interest. See General Statutes § 8-11. The trial court found no evidence to support Licamele’s allegation that the commissioner had participated in either the public hearing or the executive sessions at which the amendments were adopted.

Our examination of the record in this matter, including the transcript of the testimony before the trial court, persuades us that the trial court’s judgment was correct and should be affirmed.

The judgment is affirmed.


text:
    Carl H. Roesch v. Lila Roesch
    (9803)
    O’Connell, Heiman and Cretella, Js.
    Argued January 17
    decision released February 11, 1992

      Francis Thomas Daley, for the appellant (plaintiff).

      Deborah L. Grover, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed in all respects except that, by stipulation of the parties, the amount of attorney’s fees to be paid by the plaintiff to the defendant shall be $12,463.88.


text:
    Robert Fromer v. Greenscape of Salem et al.
    (10310)
    Dupont, Norcott and Lavery, Js.
    Argued January 17
    decision released February 11, 1992

      Robert Fromer, pro se, the appellant (plaintiff).

      Mary E. Driscoll, for the appellees (named defendant et al.).

      John W. Butts, for the appellees (defendant town of Salem et al.).
   Per Curiam.

The judgment is affirmed.


text:
    R.L.D. Associates Limited Partnership v. Inland Wetlands Commission of the Town of Seymour
    (10345)
    Norcott, Poti and Freedman, Js.
    Argued February 11
    decision released March 3, 1992

      Richard R. Ryan, with whom, on the brief, were Annacarina Del Mastro and William J. Ryan, Jr., for the appellant (plaintiff).

      Richard S. Bruchal, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Somvang Chaleunphone et al. v. Slater Road Associates
    (10308)
    O’Connell, Foti and Heiman, Js.
    Submitted on briefs February 18
    decision released March 3, 1992

      Richard F. Tolisano filed a brief for the appellant (defendant).

      Lawrence J. Legenza filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Norwest Equipment Finance, Inc. v. Stonecrafters, Ltd., et al.
    (10545)
    Daly, O’Connell and Foti, Js.
    Argued February 18
    decision released March 3, 1992

      F. Woodward Lewis, Jr., for the appellants (named defendant et al.).

      Jonathan J. Einhorn, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Walter Poe v. Maria Chona-Guillen
    (10270)
    Norcott, Landau and Heiman, Js.
    Argued February 18
    decision released March 3, 1992

      John R. Williams, for the appellant (plaintiff).

      Patty Jenkins Pittman, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


author: Foti, J.

text:
    State of Connecticut v. Derwin Gamble
    (10132)
    Dupont, C. J., Norcott and Foti, Js.
    Argued December 11, 1991
    decision released March 10, 1992

      Kent Drager, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Warren Maxwell, senior assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction rendered by the court, following a plea of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant claims that the trial court improperly (1) denied his motion to correct the judgment and the mittimus, (2) characterized his straight guilty plea as one entered under Alford, (3) accepted the plea under Alford without a proper canvassing, (4) accepted the plea without properly explaining the necessary elements, and (5) accepted a plea not made knowingly, intelligently and voluntarily. We reverse in part the judgment of the trial court.

The facts are not in dispute. The defendant was charged and tried on the crime of murder in violation of General Statutes § 53a-54a. The court declared a mistrial because of a deadlocked jury. Prior to the commencement of a second trial, the state filed a substitute information charging the defendant with manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1). The defendant entered a plea and, following the canvass, the court accepted the plea. On January 25,1991, the court sentenced the defendant, in compliance with the plea agreement, to a term of twenty years incarceration. On April 5,1991, the defendant filed this appeal. Following a hearing on June 26, 1991, the court denied the defendant’s “Motion to Correct Illegal Sentence Disposition.” On July 15, 1991, the defendant filed an amended appeal to include the denial of this motion.

The defendant argues that the trial court should have granted his motion to correct judgment and mittimus, filed pursuant to Practice Book § 935, because he pleaded guilty to first degree manslaughter under only the theory of accessorial liability. We agree.

The record reveals the following as relevant:

“Mr. Graham [Defense Counsel]: May the prior plea of not guilty and jury election be withdrawn?
“The Court: Okay.
“Mr. Maxwell [State’s Attorney]: I need the court’s permission to file a substitute information.
“The Court: Okay.
“Mr. Maxwell: Mr. Gamble had originally been charged with the crime of murder in violation of 53a-54a. And there has been a plea agreement here. The state’s consideration for that agreement is to take the charge and reduce the charge from a murder to a manslaughter in the first degree in violation of 53a-55 (a) (1).
“The Court: Okay.
“Mr. Graham: And to make it clear, I’ve discussed this with Mr. Maxwell. The plea the defendant is entering to this manslaughter charge is as an accessory and Mr. Maxwell is going to present the factual basis on a—whatever he chooses. But what I’m going to submit to the court as a factual basis for what we’re entering the plea on is the testimony of Mr. Gamble in the prior trial where he admits to the conduct that he did in this case. And by some stretches of evidence it could be deemed to be an accessory to a manslaughter but not the actual principal actor.
“The Court: Okay.
“Mr. Graham: To save you the burden of reading those many pages, we discussed this in a chambers conference about a week and a half ago. And basically—
“The Court: Well, I recall the facts. He claims he came out with a gun; he shot the man in the buttocks; the other man took the gun and shot the man and killed him.
“Mr. Graham: That’s correct. And that’s his testimony. And the original discussions in this case were aimed at a plea to the assault, which he actually confesses to in that statement.
“The Court: Right. The whole issue comes down to [the fact] that he’s not admitting that he shot the fatal bullet, but he’s pleading to the manslaughter one or the accessory to the manslaughter one to avoid going to trial on the charge of murder and face the risk of being found guilty and getting sixty years in jail. And he acknowledges that there is a probability that he may have gotten convicted. Right?
“Mr. Graham: That’s right. Well, a certainty he could be convicted but for an assault first degree on the very facts that he concedes which carries the same penalty as the charge he’s pleading to.
“The Clerk: Would the defendant please state his name and date of birth for the record?
“The Defendant: Derwin Gamble, November 24, 1966.
“The Clerk: Derwin Gamble, you’ve been charged with a substituted information in docket number 14-55491 which has been redesignated CR89-364468 with the crime of manslaughter in the first degree at the town of Hartford on or about April 23,1989, in violation of Connecticut General Statute Number 53a-55 (a) (1). How do you plead, guilty or not guilty?
“The Defendant: Not guilty for the manslaughter.
“Mr. Graham: It’s as an accessory, as I just mentioned to the court.
“The Court: Okay, you’re being put to plea as being an accessory to manslaughter in the first degree in violation of 53a-55 subsection one, and I believe, it’s 53a-8. Now what’s your plea to that charge?
“The Defendant: That’s accessory to—
“The Court: Accessory to manslaughter.
“The Defendant: Guilty, sir.”
The court then proceeded to canvass the plea of guilty and thereafter:
“The Court: And you’ve had enough time to talk to your lawyer about this case and your decision to plead guilty?
“The Defendant: Yes, I have.
“The Court: He’s explained to you the elements of the offense and the evidence the state would have presented at trial?
“The Defendant: Yes, Your Honor.
“The Court: And you’ve plead to a Class B felony. You could get twenty years in jail and/or a $10,000 fine. And manslaughter in the first degree, you’re guilty of that when with intent to cause a serious physical injury to another person you cause the death of that person. Now wait a minute, I’m not through yet. But you’re charged as an accessory which means that you—
“Mr. Maxwell: If Your Honor please, the charge is— may I interrupt the court for a moment? I need the court’s permission to do that.
“The Court: Yes.
“Mr. Maxwell: Accessory is merely an alternative means of proving the crime of assault in the first degree. And he—
“The Court: I know that—manslaughter.
“Mr. Maxwell: Manslaughter, excuse me—manslaughter in the first degree. He wants to make his plea consistent with his evidence in the first trial, which I don’t object to. But the underlying basis for the plea is as principal. Now, it’s a combination of accessoriness or an Alford plea under North Carolina. But the information is [not] going to reflect 53a-8 in the information.
“The Court: And if he’s tried as a principal a jury could come back and find him guilty as an accessory?
“Mr. Maxwell: That’s correct, sir.
“The Court: And you agree with that also, Mr. Graham?
“Mr. Graham: Yes sir.
“The Court: Okay. So what I’m doing is, I’m saying that to be found guilty, he has you charged as the principal. If the facts came out that you were acting with the mental state required for the commission of an offense you aided another person in conduct, which would be the manslaughter one, they would find you guilty of manslaughter one. Even under your version. Do you understand that? No?
“The Defendant: No, I don’t.
“The Court: Okay, go see Judge Freed.
“Mr. Graham: I don’t think this is a withdrawal of the plea, Judge.
“The Court: Well, no. See, now the problem is he doesn’t agree with that. And he’s being charged as a principal. He could be convicted as an accessory. Now, for me to canvass him, even under his theory, it would be that he was there aiding someone else who actually committed the killing.
“Mr. Graham: What you asked him though is, do you understand that. And his response to your question, he said, ‘No.’ But that doesn’t mean he doesn’t want to continue with this proceeding here.
“The Court: But you understand, Mr. Gamble, that you’re charged with manslaughter, okay? And I’ve already read what manslaughter in the first degree is, what the state would have to prove on that. At trial, if the state proved that you were the one who shot the guy or you were with the person who shot the gun and you intentionally aided the person who shot the gun, they could find you guilty. Do you understand that?
“The Defendant: Of an accessory to manslaughter.
“The Court: Well they would—okay, yes. You got me now?
“The Defendant: Yes, I do. And I plead guilty to the accessory to manslaughter.
“The Court: Okay, so now we’re back on track again, okay? Well, you’re pleading guilty to manslaughter. I’m just trying to tell you that the state, at the trial, if they prove you shot the gun or with someone who shot the gun and killed the person, the jury could come back and find you guilty, understood?
“The Defendant: Understood.
“The Court: Okay. Is that agreeable to you?
“Mr. Graham: I think I understand.
“The Court: Do you understand that too, so that we’re all agreed on this, Mr. Maxwell?
“Mr. Maxwell: Yeah, it’s all right with me the way the court put it forth. I don’t know if he understood that it’s really—under the law an accessory is just as guilty as the principal. There’s no difference which one he is.
“Mr. Graham: Yes.
“The Court: You understand that Mr. Gamble?
“The Defendant: Yes.
“Mr. Graham: The choices of words here are very important for reasons that have very little to do with what’s happening here.
“The Court: Okay. Whether you aid someone or you do it yourself, it’s the same blame, same punishment, understand?
“The Defendant: Yes I do.”
The court continued to canvass and thereafter:
“The Court: Okay. Once I accept your plea today you’ll come back on January 25 for sentencing. On that day you will not be allowed to take your plea back except with my permission. Do you understand that?
“The Defendant: Yes, Your Honor.
“The Court: So, if there’s a reason why you don’t want me to take your plea today tell me now, okay?
“The Defendant: I just want to have the correct understanding that my charge is an accessory to manslaughter.
“The Court: No, the state has charged you with manslaughter. Now, what I’m saying to you is if you were tried before a jury, the jury could convict you as the principal or as the accessory. You’re pleading guilty to a manslaughter charge based upon your version of the facts that you were not the one who actually killed this man but that you were there with him when it happened, okay? Got it?
“The Defendant: Yes.
“The Court: But the charge is going to read manslaughter. But your version of the facts is you weren’t the shooter; you were there with the shooter. Do you understand that?
“The Defendant: Yes sir.”

The parties agree that being an accessory is not a separate crime to manslaughter in the first degree but rather an alternative way of committing the offense of manslaughter. “It is well established in this state that there is no such crime as ‘being an accessory.’ ” State v. Foster, 202 Conn. 520, 528, 522 A.2d 277 (1987). Rather, the accessory statute, General Statutes § 53a-8, merely provides an alternative theory under which liability for the underlying substantive crime may be proved. State v. Harris, 198 Conn. 158, 163, 502 A.2d 880 (1985).” State v. Hopkins, 25 Conn. App. 565, 568-69, 595 A.2d 911, cert. denied, 220 Conn. 921, 597 A.2d 342 (1991).

The record is clear that the state never formally charged the defendant as an accessory, but did recognize that the defendant did not admit to the factual allegations that he was the principal actor. The defendant admitted and the court accepted only that he was an accessory to manslaughter. “[A] defendant may be convicted as an accessory even though he was charged only as a principal as long as the evidence presented at trial is sufficient to establish accessorial conduct.” State v. Fleming, 198 Conn. 255, 268 n.15, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); State v. Crump, 201 Conn. 489, 493, 518 A.2d 378 (1986); State v. Johns, 184 Conn. 369, 373-74 n.7, 439 A.2d 1049 (1981). The fact that the defendant was convicted because he pleaded guilty rather than exercise his constitutional right to a trial is of no consequence under these circumstances. “A guilty plea is itself a conviction.” State v. Wright, 207 Conn. 276, 287, 542 A.2d 229 (1988). The only predicate for charging the defendant with violating General Statutes § 53a-55 (a) (1) is direct involvement in the crime. Liability does not turn on whether he was found to be a “principal” or an “accessory.” State v. Harris, supra, 165. In the present case, the court accepted an alternate theory of liability. He was found to be responsible for the crime of manslaughter in the first degree because he intentionally aided in its commission. The requisite intent is twofold: To intend to aid the principal and in so aiding to intend to commit the offense with which he is charged. State v. Crump, supra, 495. Accessorial liability does not require, however, that the defendant act with the conscious objective to cause the result described by statute, and, thus, the accessory may be liable in aiding another if he acts intentionally, knowingly, recklessly or with criminal negligence toward that result, depending on the mental state required by the substantive crime. State v. Foster, supra, 530-31. It is well established in Connecticut that “there is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility.” In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987).

The defendant steadfastly maintains that he did not cause the death, and while the distinction between accessory and principal may be irrelevant as to criminal liability, it was relevant to the entering and acceptance of the plea. The defendant is not claiming that the sentence imposed is illegal but rather that it was, instead, “imposed in an illegal manner” as these words are used in Practice Book § 935, and that, therefore, the judgment and the mittimus issued should be corrected to conform to his plea as an accessory to manslaughter.

“Sentences imposed in an illegal manner have been defined as being ‘within the relevant statutory limits but . . . imposed in a way which violates defendant’s right ... to be addressed personally at sentencing and to speak in mitigation of punishment ... or his right to be sentenced by a judge relying on accurate information or considerations solely in the record, or his right that the government keep its plea agreement promises ....’” State v. McNellis, 15 Conn. App. 416, 444, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

In this case, the defendant entered his plea pursuant to his belief that he could plead to manslaughter in the first degree as an accessory. A judgment of conviction must conform to the crime with which the defendant was charged, and the sentence imposed must conform to that crime. If the state prosecutes a defendant as a principal pursuant to a bill of particulars, and he prepares and presents his defense on that basis, the jury cannot be charged that he could be found guilty of accessorial liability. State v. Steve, 208 Conn. 38, 45-46, 544 A.2d 1179 (1988).

Although a defendant may plead guilty to a crime without distinguishing whether he was a principal or an accessory, once he has chosen to plead guilty as an accessory and the court has accepted that choice by accepting that plea, he can be found guilty of only that crime and is entitled to a judgment, sentence and mit-timus that reflects that crime. His decision to plead as an accessory has to be influenced by his belief that he will be found guilty as an accessory. See id., 46. Due process requires that the defendant know the specific charge to which he is pleading. A jury may be polled as to the basis of its verdict to determine whether the defendant was convicted as a principal or an accessory. See id., 47. If this is so, a defendant must be able to plead as an accessory or a principal.

We therefore conclude that the court should have granted the defendant’s motion to correct a sentence made in an illegal manner, pursuant to Practice Book § 935. Having so concluded, we find it unnecessary, and the defendant agrees, to address the next three issues raised.

The final issue raised by the defendant is that the trial court improperly accepted his plea, and that his plea was not made knowingly, intelligently and voluntarily. Specifically, he claims that the trial court failed to explain properly the intent required for accessory liability, and that, because of the inherent inconsistency in the defendant’s assertions, it was impossible for the trial court to have determined that the plea was made knowingly, intelligently and voluntarily.

“ ‘It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.’ ” State v. Ramos, 23 Conn. App. 1, 3, 579 A.2d 560 (1990). The defendant did not raise this claim by moving to withdraw his plea pursuant to Practice Book § 720, but seeks review under Evans-Golding. State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973); State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant alleges that his claim goes to the constitutional validity of his plea. He alleges that his claim is of constitutional magnitude because it represents a violation of a fundamental right that clearly exists and clearly deprived him of a fair trial. “Under Practice Book §§ 720 and 721, a defendant may withdraw his guilty plea on the ground of a deficient plea canvass only by bringing the deficiency to the court’s attention prior to the conclusion of the sentencing proceeding.” State v. Anderson, 23 Conn. App. 564, 567, 583 A.2d 142 (1990), rev’d in part, 220 Conn. 400, 599 A.2d 738 (1991). Failure to raise a claim in a timely manner will usually preclude review of the plea. Id., 568.

In State v. Golding, supra, our Supreme Court reformulated the test of reviewability in Evans. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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., 239-40. When any one of these conditions is not met, the defendant cannot prevail. Id., 240.

This court may review claims that implicate the knowing and voluntary nature of a plea under the exceptional circumstances doctrine of State v. Evans, supra, 70. State v. Coleman, 17 Conn. App. 307, 311, 552 A.2d 442 (1989). In this case, a limited review is necessary to determine whether the knowing and voluntary nature of the defendant’s plea was affected. State v. Wright, supra, 286-87. Our examination of the plea canvass reveals the following. While it is clear that the defendant expressed some confusion when the canvassing began, it is also clear that the court responded to the defendant’s initial confusion by suggesting that he withdraw the plea and go to trial. The defendant requested that the plea hearing go forward. The record shows that the court, after the defendant insisted that he was pleading guilty as an accessory, fully explained that if he were tried to a jury, he could be convicted either as a principal or as an accessory, and according to the defendant’s version, he intentionally aided the shooter, who shot the gun and killed the person. The court explained: “If the facts come out that you were acting with the mental state required for the commission of an offense you aided another person in conduct, which would be the manslaughter one, they would find you guilty of manslaughter one. Even under your version.” After the defendant stated that he did not understand and the court suggested that he go to trial, the defendant, through counsel, persisted and requested to continue with the plea hearing. Following the state’s recitation of the allegations, the court inquired, “Now, you plead to a manslaughter charge, but you’re not saying that you did what [the state’s attorney] said you did?” The defendant replied: “Right, exactly.” The court stated: “You’re pleading, saying, 1 wasn’t the shooter. I was with the shooter as an accessory.’ Am I right?” To which the defendant replied: “Yes, yes sir.”

This review indicates that the plea was knowingly and voluntarily entered. We conclude that neither the confusion of the defendant, if any, nor the court’s failure specifically to refer to the dual intent requirement on accessorial liability affected the knowing and voluntary nature of his plea. Although he alleges that a constitutional right is claimed, the defendant has failed to demonstrate on appeal that his claim is truly of constitutional proportions. Therefore, we conclude that his claim is not reviewable under the Evans-Golding bypass doctrine.

The judgment is reversed in part and the case is remanded with direction to grant the defendant’s motion to correct. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       The parties dispute the nature of the plea. The judgment file states: “To this information, on November 14,1990, the defendant entered a plea of guilty under the doctrine of [North Carolina, v.] Alford . . . .’’The record is clear that the defendant never submitted his guilty plea under Alford.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

       Practice Book § 935 provides: “The judicial authority may at any time correct an illegal sentence or other illegal disposition, or it may correct a sentence imposed in an illegal manner or any other disposition made in an illegal manner.”

       General Statutes § 53a-8 provides: “criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Practice Book § 720 provides: “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       Cf. State v. Fudge, 20 Conn. App. 665, 670, 569 A.2d 1145 (1990), and State v. Foshay, 12 Conn. App. 1, 23-24, 530 A.2d 611 (1987). Failure to instruct on the dual intent requirement on accessorial liability found not to be of constitutional proportion and thus not reviewable where neither an instruction was requested nor an exception taken.

       We note that the defendant did not request that his sentence be vacated and a new sentence imposed. He requested only that the judgment and the mittimus be corrected.