author: O’Connell, J.

text:
    Richard W. Bishop et al. v. Elizabeth C. Bordonaro, Administratrix (Estate of Helen M. Garboski), et al.
    (7360)
    Borden, O’Connell and Foti, Js.

      Argued April 12
    decision released September 19, 1989

      Jule A. Crawford, with whom, on the brief, was Michael F. Dowley, for the appellants (plaintiffs).

      Robert L. Curzan, for the appellee (named defendant).

      David S. Hoopes, for the appellee (defendant Colonial Cromwell Commons Limited Partnership).
   O’Connell, J.

This is an appeal from the decision of the Superior Court affirming, after a trial de novo, the order of the Probate Court to sell real estate.

On August 17, 1987, the defendant administratrix applied to the Probate Court for authority to sell the deceased’s house in Cromwell. On September 17,1987, that court held a duly noticed hearing on the application to sell the house to the plaintiffs, Richard and Sharon Bishop, who had signed a contract with the administratrix to buy the house for $155,000. At the hearing, the Probate Court chose instead to order a sale to the intervening defendant, Colonial Cromwell Commons Limited Partnership (hereafter Colonial), which appeared at the hearing and offered to buy the property for $185,000. The plaintiffs sought and received a decree allowing an appeal. The Superior Court heard the matter de novo and affirmed the Probate Court’s order to sell the property to Colonial, finding that sale to be in the best interest of the estate. Additional facts necessary to determine this appeal are contained in the discussion of the relevant claims of error.

The plaintiffs claim that the Superior Court erred (1) in failing to find the appeal to be premature because the Probate Court had not issued a decree of sale, (2) in allowing into evidence a previously unsigned, unenforceable contract for the sale of real estate, and (3) in failing to find that an oral contract to convey real estate violated the statute of frauds. We find no error.

Before the claims of error are considered, a threshold question of the plaintiffs’ aggrievement and standing to appeal must be determined because it goes to the jurisdiction of the Superior Court to hear the appeal. Lenge v. Goldfarb, 169 Conn. 218, 220, 363 A.2d 110 (1975); Urrata v. Izzillo, 1 Conn. App. 17, 19, 467 A.2d 943 (1983); see also State v. Pierson, 208 Conn. 683, 687, 546 A.2d 268 (1988), cert. denied, 489 U.S. 1016, 109 S. Ct. 1131, 103 L. Ed. 2d 193 (1989). The general rule is that a disappointed bidder lacks standing to commence a legal action. Ardmare Construction Co. v. Freedman, 191 Conn. 497, 501-502, 467 A.2d 674 (1983). In probate matters, however, a much broader base of aggrievement is created by General Statutes § 45-288. That statute provides in part as follows: “Any person aggrieved by an order, denial or decree of a court of probate in any matter . . . may appeal therefrom to the superior court . . . .” (Emphasis added.) “While one who bids upon the property of an estate offered for sale has no interest in the property itself, he does have an interest in the proceedings employed by the court to approve the sale.” Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 517-18, 429 A.2d 967 (1980); Doyle v. Reardon, 11 Conn. App. 297, 304-305, 527 A.2d 260 (1987). Under this broad definition of aggrievement, the plaintiffs had standing to appeal the Probate Court’s order to the Superior Court.

I

In their first claim of error, the plaintiffs argue that the Superior Court should have dismissed the appeal on the ground that it was premature “because the intervening defendant [Colonial] had never filed a proper bond.” Although this statement does not characterize the issue directly as one of subject matter jurisdiction, the plaintiffs’ assertion that “the appeal was premature or moot and that this court should return this case back [sic] to the Probate Court to insure compliance with all statutory requirements” amounts, in effect, to an attack on the Superior Court’s jurisdiction.

We perceive two problems with this argument. To begin with, we are confronted with the highly unusual argument from the plaintiffs that the Superior Court should have dismissed their appeal. We fail to comprehend how this position could benefit them. At the time they appealed to the Superior Court, there was a Probate Court order of sale, even if arguably a deficient one, in effect. This order remains in full force and effect unless and until a judgment of the Superior Court determines otherwise. Kerin v. Stangle, 209 Conn. 260, 265, 550 A.2d 1069 (1988); Pettee v. Hartford-Connecticut Trust Co., 105 Conn. 595, 603, 136 A. 111 (1927). “An appeal from probate does not vacate the decree appealed from nor does it lift the entire cause from the probate court into the superior court. On the contrary, it leaves the entire matter as it was in the probate court, there to be continued with and completed according to law, presenting in the meanwhile to the superior court for redetermination, after a retrial of the facts, the special and limited issues embraced within the particular decree appealed from.” 1 W. Locke & P. Kohn, Connecticut Probate Practice § 214; see also Kerin v. Stangle, supra.

Thus, if we agree that the Superior Court should have dismissed the appeal from probate, the proceedings in the Probate Court would go forward, resulting in the sale to Colonial that the plaintiffs oppose. Kerin v. Stangle, supra. Any further appeal attacking the order of sale would be barred by the statutory thirty day appeal period. General Statutes § 45-289.

The second problem with the plaintiffs’ argument is that there is no requirement that a purchaser of real estate from a decedent’s estate post any type of bond. Rather, General Statutes § 45-238 (b) requires that before a fiduciary may execute a conveyance of real estate the fiduciary must first give a “bond faithfully to administer and account for the proceeds of the sale . . . according to law . . . .” Accordingly, the Probate Court decree of sale in this case set a bond of $160,000 to be filed by the fiduciary.

The only reference to a bond being filed by the purchaser is found in the decree allowing the appeal from probate. This is obviously an error because the probate decree of sale requiring a fiduciary to post a bond on the sale was dated September 16, 1987, and the decree allowing the appeal was not signed until October 19,1987. It is unlikely that the Probate Court would have allowed an appeal permitting the filing of a bond that it had never ordered. We conclude, therefore, that the plaintiffs intended to argue that the fiduciary had not filed a bond and will determine this claim of error on that basis.

The order of sale fixed the fiduciary’s bond on the sale at $160,000 and recited that it had been filed and approved. The Superior Court found that the bond had not yet been filed. This error, however, is not relevant to this appeal. If a bond was not filed before the conveyance, it would void the sale; State ex rel. Moriarty v. Donahue, 82 Conn. 308, 313, 73 A. 763 (1909); not the order of sale. There is no error on the plaintiffs’ first claim.

II

In their second claim, the plaintiffs argue that the Superior Court erred when it allowed Colonial’s previously unsigned contract into evidence at the trial de novo. This claim is founded on the singular nature of a probate appeal. “ ‘An appeal from a Probate Court to the Superior Court is not an ordinary civil action.’ ” Kerin v. Stangle, supra, 263, quoting Slattery v. Woodin, 90 Conn. 48, 50-51, 96 A. 178 (1915); Silverstein’s Appeal from Probate, 13 Conn. App. 45, 52-53, 534 A.2d 1223 (1987). Rather, it has been clothed with “ ‘very definite characteristics which mark it as a thing peculiar unto itself . . . .’” Silverstein’s Appeal from Probate, supra, 52, quoting 1 W. Locke & P. Kohn, Connecticut Probate Practice § 186. When the Superior Court entertains an appeal from a Probate Court, it takes the place of and sits as a court of probate. Kerin v. Stangle, supra, 264; Satti v. Rago, 186 Conn. 360, 365, 441 A.2d 615 (1982). In ruling on a probate appeal, the Superior Court is not exercising the powers of a constitutional court of general jurisdiction but is exercising the powers of a Probate Court. Kerin v. Stangle, supra; Slattery v. Woodin, supra; Tolles’ Appeal from Commissioners, 54 Conn. 521, 524, 9 A. 402 (1886); Silverstein’s Appeal from Probate, supra, 53. Although the Superior Court tries the issues before it de novo, it does so exercising the special and limited jurisdiction conferred on it by the probate appeal statute. Slattery v. Woodin, supra; Silverstein’s Appeal from Probate, supra, 54.

It is firmly established that in probate appeals, a Superior Court may admit any evidence that was received by the Probate Court or could have been received by it. Kerin v. Stangle, supra; Baskin’s Appeal from Probate, 194 Conn. 635, 641, 484 A.2d 934 (1984). The converse of this rule is that the Superior Court may not receive evidence that the Probate Court could not have received because it came into existence subsequent to the Probate Court hearing. Satti v. Rago, supra, 369.

The plaintiffs contend that this rule of evidence precluded the Superior Court from admitting Colonial’s bond for deed as evidence in the Superior Court trial. The record, however, does not support a violation of this evidentiary rule.

The Probate Court had two contracts for sale presented to it: one from the plaintiffs for $155,000 and an unsigned contract from Colonial for $185,000. Colonial represented that it would sign and deliver its contract to the attorney for the decedent’s estate before 5 p.m. the following day. The Probate Court examined Colonial’s unsigned contract and, because of the $30,000 difference in price, found it to be in the best interest of the estate to approve it.

When the Probate Court approved Colonial’s contract, it, in effect, acceded to Colonial’s request that it be given until 5 p.m. the next day to execute and deliver the contract to the estate’s attorney. This may be viewed either as a continuance of the hearing until that time or the entry of an order of sale conditioned upon the submission of a signed contract to the estate’s attorney. Under either theory, the executed contract was not documentary evidence that came into existence subsequent to the Probate Court hearing. Thus, the Superior Court did not err in admitting Colonial’s signed contract into evidence.

Ill

The plaintiffs next argue that the Superior Court’s approval of the previously unsigned contract for the sale of real estate violated the statute of frauds. General Statutes § 52-550. This claim assumes that we would find the submission of the previously unsigned Colonial contract to be in error and that the Superior Court was limited to considering the contract in the unsigned form in which it was initially exhibited to the Probate Court. This assumption evaporated in part II of this decision, supra, wherein we held that the Superior Court properly admitted that contract into evidence.

This claim lacks merit for a second reason. The statute of frauds does not prohibit the sale of real estate pursuant to an oral contract. The effect of the statute is to create a defense to an action on an oral contract. See Scinto v. Clericuzio, 1 Conn. App. 566, 474 A.2d 102 (1984). It does not, however, bar the conveyance of real estate pursuant to a contract that is not in writing. Id., 567. See also 72 Am. Jur. 2d, Statute of Frauds § 3. Hence the plaintiffs’ claim is meritless.

IV

In their next claim, the plaintiffs argue that the Superior Court erred in not finding that the notice of the hearing on the application to sell real estate was defective. The pertinent part of General Statutes § 45-241 states that “the court of probate in ordering a sale . . . shall direct whether the sale shall be public or private.” The plaintiffs argue that if the hearing had resulted in approval of a sale to them, it would have been a private sale. They contend that it became a public sale, however, when a buyer, previously a stranger to the proceedings, appeared at the hearing and offered more money for the property. That is not correct.

As used in the statute, public and private are words of art having meanings slightly different than their common usage in the language. A public sale is a sale made at public auction and all other sales are private, including, for example, a sale by the filing of sealed bids to be opened by the Probate Court at a specified time. Off0redi v. Huhla, 135 Conn. 20, 23, 60 A.2d 779 (1948); 2 G. Wilhelm, Connecticut Estates Practice (1974) § 160.

V

In the present case, the fact that a hearing on the application to sell the real estate resulted in a sale to a party other than the one initially expected to be the buyer does not alter the sale from private to public. The Probate Court’s notice of a hearing concerning a private sale was sufficient to cover a sale to Colonial as well as a sale to the plaintiffs and was, therefore, appropriate. No further notice was required before the Probate Court could approve the sale to Colonial.

In their final claim, the plaintiffs argue that there was insufficient evidence to warrant an order of sale to Colonial. It is the duty of the court to determine what would be in the best interest of the estate. General Statutes § 45-238 (a). That determination rests within the discretion of the Probate Court and, on appeal, with the Superior Court. Kerin v. Stangle, supra, 264. We are satisfied that there was ample evidence to support a finding that a sale to Colonial for $30,000 more than the plaintiffs were offering was in the best interest of the estate. Thus, the Superior Court’s decision was a legal and reasonable exercise of its discretion.

There is no error.

In this opinion the other judges concurred.

       At oral argument, counsel for Colonial advised this court that the parties conceded that the bond mentioned in the Probate Court order allowing the appeal should have referred to the fiduciary and not to the intervening defendant. That concession is not binding upon this court, however; In re Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 716, 501 A.2d 377 (1985); see State v. Heinz, 193 Conn. 612, 616, 480 A.2d 452 (1984); and since this claim of error implicates the jurisdiction of the Superior Court, we have elected to consider it on its merits.

       The appearance of the decree allowing the appeal, on legal stationery of the plaintiffs’ counsel, tends to indicate that, in accordance with a common custom, the decree was prepared by them and submitted to the Probate Court for signature. This would be consistent with the reference to Colonial in papers initiated by them, whereas the correct party was referred to in the order of sale, which was initiated by the court.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Morganti, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc. Boehringer Ingelheim Pharmaceuticals, Inc. v. Morganti, Inc.
    (7578)
    Dupont, C. J., Daly and O’Connell, Js.

      Argued June 13
    decision released September 19, 1989

      Robert B. Shapiro, for the appellant (defendant in the first case, plaintiff in the second case).

      David E. Rosengren, with whom, on the brief, was Kevin W. Gillen, for the appellee (plaintiff in the first case, defendant in the second case).
   Dupont, C. J.

In this action, Morganti, Incorporated (Morganti), applied for an order confirming an arbitration award and Boehringer Ingelheim Pharmaceuticals, Inc. (BIP), in a separate application, moved to vacate that same award.

On August 23,1983, the parties entered into a written agreement wherein Morganti agreed, as a general contractor, to construct and renovate the research and development facilities owned by BIP at its facility in Ridgefield. At the conclusion of the project on August 8, 1986, Morganti filed a demand for arbitration pursuant to the arbitration clause contained in that contract, § 7.9.1, which reads: “All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof . . . shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This Agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with the applicable law in any court having jurisdiction thereof.”

The claim submitted to the arbitrators requested the following: “A determination of the amount due Morganti on behalf of itself and its subcontractors on the Project, including, but not limited to: (1) the contract balance; (2) extra and additional work outside the scope of the contract; (3) delays; (4) labor escalation; (5) disruption, inefficiency and loss of productivity; (6) loss of use of money; (7) interest; and (8) arbitration fees and expenses and attorney’s fees.”

Thereafter, BIP filed a complaint in Superior Court asking for a temporary and a permanent injunction prohibiting Morganti from proceeding to arbitrate any claims on behalf of the subcontractors. Morganti filed a motion to dismiss the action, which was granted. The court, Thim, J., in its concluding paragraph, after a lengthy discussion of the applicable arbitration precedent, stated: “The contract provision at issue, ‘all claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof,’ is broad and all-encompassing, thus indicating the parties’ intentions to submit the issue of arbitrability of the dispute to the arbitrators. Accordingly, the defendant’s motion to dismiss the injunction action must be granted.”

BIP appealed that decision to this court, where Judge Thim’s decision was upheld on a technical basis because of BIP’s failure to file its brief in opposition to Morganti’s motion to dismiss in a timely fashion. Boehringer Ingelheim Pharmaceuticals, Inc. v. Morganti, Inc., 13 Conn. App. 813, 814, 537 A.2d 171 (1988).

The parties proceeded to arbitration and both parties argued and briefed the issue of whether the subcontractor claims were arbitrable. The arbitrators, in their decision dated July 1,1987, stated: “The arbitrators on this matter, having heard the evidence and arguments of the parties, and having considered their briefs, determine that it was agreed in the construction contract between the parties that all claims of the subcontractor and the sub-subcontractors for breach of contract as well as for extra work are arbitrable in this proceeding.”

After more than forty days of testimony, the arbitrators on April 27,1988, filed their arbitration award as follows: “On the Claimant’s claim, the arbitrators find in favor of the Claimant in the total amount of $1,615,527 and further find the entitlement to said sum to be” $812,250 for Morganti and the balance divided among five named subcontractors.

Thereafter, the parties filed the applications in the trial court for confirmation and vacation of the award that are the subject of this appeal. In the first count of its application to vacate, BIP claimed that the arbitrators had violated the parties’ agreement to arbitrate by considering the subcontractor claims, which it claimed is contrary to Connecticut law. In the second count, BIP claimed that in making the award the arbitrators had exceeded their authority in violation of § 52-418 (a) (4) of the General Statutes. In its reply brief in that court, BIP characterized the first count of its application to be an allegation that “the panel procedurally violated the parties’ agreement by finding that the subcontractors’ claims were arbitrable . . . .” (Emphasis added.)

The trial court, Gormley, J., in a carefully constructed and well reasoned memorandum of decision, found that the decision by Judge Thim finally and conclusively left the determination of arbitrability to the arbitrators, that the doctrine of res judicata precluded further court review of that determination and that the arbitrators’ determination of arbitrability did not contravene General Statutes § 52-418 or procedurally violate the parties’ contract. The trial court thereafter granted Morganti’s request to confirm the arbitrators’ award and denied BIP’s request to vacate the award. BIP subsequently filed the present appeal claiming error in the trial court’s findings and conclusions of law. We find no error.

BIP first claims that the trial court erred in determining that the decision by Judge Thim finally and conclusively left the determination of arbitrability to the arbitrators and that the doctrine of res judicata precluded further court review of that determination. BIP claims that Judge Thim’s opinion decided only that the initial determination as to the arbitrability of the subcontractor claims was for the arbitrators, but that the decision of the arbitrators was still ripe for review. Morganti claims that Judge Thim’s opinion finally and conclusively left the determination of arbitrability to the arbitrators and that that decision, by the doctrine of res judicata, precluded further court review. We agree with Morganti’s view.

“Issue preclusion or collateral estoppel can be distinguished from claim preclusion or res judicata. Issue preclusion is the doctrine that bars the ‘relitigation’ of an issue of ultimate fact by the same parties upon a different cause of action. State v. Aillon, 189 Conn. 416, 424, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983). By contrast, ‘under “the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose.” ’ State v. Ellis, 197 Conn. 436, 462-63, 497 A.2d 974 (1985), quoting State v. Aillon, supra, 423-24. In Ellis, the court questioned the continued viability of distinguishing between claim and issue preclusion and suggested that the ultimate inquiry, as to both concepts, should be to ask whether the party had an ‘ “adequate opportunity to litigate the matter in the earlier proceeding . . . .” ’ (Emphasis added.) State v. Ellis, supra, 464-65 n.22, quoting D. Currie, ‘Res judiciata: The Neglected Defense,’ 45 U. Chi. L. Rev. 317, 342 (1978).” Hanstead v. Safeco Ins. Co. of America, 19 Conn. App. 515, 518 n.l, 562 A.2d 1148 (1989).

There is no question that BIP had an “adequate opportunity to litigate” the question of arbitrability before Judge Thim. Moreover, BIP fails to point out that, although Judge Gormley ultimately, supported Morganti’s interpretation of Judge Thim’s ruling in its determination that the court’s ruling was res judicata, the court did in fact review the merits of Judge Thim’s decision. Upon that review, the court likewise determined that the contract between the parties evidenced an intention to submit the issue of arbitrability to the arbitrators.

We therefore conclude that Judge Gormley did not err in determining that Judge Thim’s decision finally and conclusively left the determination of arbitrability to the arbitrators and that the doctrine of res judicata precluded him from revisiting the issue.

BIP next claims that the trial court erred in finding that the arbitrators’ determination of arbitrability did not contravene General Statutes § 52-418 or procedurally violate the parties’ contract. See East Hartford v. East Hartford Municipal Employees Union, Inc., 206 Conn. 643, 648, 539 A.2d 125 (1988).

In the present case, BIP, in its motion to vacate, attempted to make the same claim with reference to the arbitrability of the subcontractor claims by claiming both a procedural violation of the parties’ agreement and a violation of General Statutes § 52-418 (a) (4). We agree "with the trial court that BIP’s claim concerning the arbitrators’ determination that the subcontractor claims were arbitrable does not constitute a procedural claim as that term has been used. See, e.g., East Hartford v. East Hartford Municipal Employees Union, Inc., supra, 649; O&G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, 203 Conn. 133, 147-48, 523 A.2d 1271 (1987); Costello Construction Corporation v. Teamsters Local 559, 167 Conn. 315, 318, 355 A.2d 279 (1974).

The next issue is whether the arbitrators’ determination that the subcontractor claims were arbitrable passes scrutiny under General Statutes § 52-418 (a) (4). “ ‘It is axiomatic in this jurisdiction that any challenge to an award based on General Statutes § 52-418 (a) (4), on the ground that the arbitrator exceeded his powers ... is limited to a comparison of the award with the submission.’ Wolf v. Gould, [10 Conn. App. 292, 296, 522 A.2d 1240 (1987)]. Our review on appeal is limited to an examination of the submission and the award; we then determine whether the award conforms to the submission. Id.” Fraund v. Design Ideas, Inc., 17 Conn. App. 280, 284, 551 A.2d 1279 (1989).

If a submission is unrestricted, the arbitrators are not required to decide the issues according to law and the award cannot be reviewed for errors of law or fact. Meyers v. Lakeridge Development Co., 173 Conn. 133, 135, 376 A.2d 1105 (1977). The arbitration clause in the contract constitutes the written submission to arbitration. Vail v. American Way Homes, Inc., 181 Conn. 449, 451, 435 A.2d 993 (1980). The trial court found that the arbitration contract in this case was unrestricted. As we have frequently stated we cannot, and do not, retry the facts. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 220, 435 A.2d 24 (1980). From a review of the arbitration award, it is clear that the award conforms to the submission and that BIP’s claim that the arbitrators exceeded their powers is without merit.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes § ] 52-418. vacating award, (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”


author: Norcott, J.

text:
    State of Connecticut v. Joseph Torrice
    (6528)
    Stoughton, Norcott and Foti, Js.

      Argued June 21
    decision released September 19, 1989

      KentDrager, assistant public defender, for the appellant (defendant).

      John O’Meara, deputy assistant state’s attorney, with whom were Marcia Smith, assistant state’s attorney, and, on the brief, John A. Connelly, state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the trial court’s judgment of conviction, rendered after a jury trial, of one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (l), four counts of assault in the third degree in violation of General Statutes § 53a-61 (a) (l), and five counts of risk of injury to a child in violation of General Statutes § 53a-21. The defendant claims the trial court erred in that (1) it failed to add “judicial gloss” to its instructions to the jury concerning the crime of risk of injury to a minor, (2) it failed to instruct the jury in accordance with the provisions of General Statutes § 53a-18 (1), (3) there was insufficient evidence to convict him on two of the counts, (4) it failed to present the jury with the question of whether the victim’s arm was broken in Connecticut or New York, (5) it failed to give the jury a unanimity charge, (6) it should have denied the state’s motion in limine regarding cross-examination of one of the state’s witnesses, (7) it should not have admitted evidence of the defendant’s admission by silence, (8) the prosecutor’s closing argument deprived the defendant of a fair trial, and (9) he was convicted in violation of his double jeopardy rights. We find no error.

From the evidence produced at trial, the jury could reasonably have found the following facts. The defendant lived with K and her two children in an apartment on Shag Road in Waterbury. The defendant is the father of K’s son, but not of her three year old daughter, J, the victim in this case. The defendant’s cousin, Vincent Mahoney, and his girl friend, Christine Hayes, also shared the apartment with the defendant.

All of the events that resulted in the charges against the defendant occurred between May 1 and May 18, 1986. On one occasion, J was sitting on a couch in the apartment with Hayes when the defendant came in and told her to get dressed. When she did not react, he called her “mental” and “stupid” and then forceably grabbed her by the arm, kicked her in the back and told her to get up.

On another occasion, the defendant was trying to teach J the alphabet. When she was unable to recite it, the defendant bit her on the nose causing her to bleed and scream.

Another incident arose when J wet her pants in Mahoney’s car. The defendant and J were riding in the back seat of Mahoney’s car while Mahoney and Hayes were in the front seat. When the defendant discovered that J had wet her pants, he picked her up and threw her to the floor of the car telling her if she wet her pants she belonged “on the floor like a dog.” The defendant, who was wearing pointed western style boots, then kicked J in the back. When they arrived home, the defendant said he would change J and, in the presence of Mahoney, told her to take her clothes off. Once she did, the defendant pinched J’s genitalia and told her that the next time she wet her pants he would “burn it.”

On another occasion, J wet her pants in the living room of the apartment. When the defendant noticed, he picked up J by the arm and pulled her to the bathroom and pushed her down on a child’s potty seat. After some time had passed, the defendant went back to the bathroom, picked J up by the arm, and tried to kick the potty seat out from under her, but instead kicked her, in the thighs and buttocks.

In yet another incident, the defendant went to get J out of bed. He pulled her by the arm while she was still sleeping, and while telling her to get up, he dropped her to the floor from a height of four feet. He then grabbed J by the hair to stand her up and told her to get dressed. When J began to cry, he slapped her on the side of the head and kicked her in the back. The defendant was calling J “stupid” and “a retard” during this incident.

Another time, the defendant was playing with his son in the apartment and J was watching. When the defendant noticed J, he picked her up by the arms and began swinging her so that her feet hit the ceiling, her body was twisting, and she was screaming.

Finally, on May 18,1986, J’s grandmother took J to Waterbury Hospital after she noticed that J had numerous bruises and her left arm was swollen. J’s injuries included bruises to her upper right arm, face, buttocks, knee, back and hip, and she had a scab on her nose and abrasions to her ears and genitalia. Her left arm recently had been fractured, and she had suffered fractures, at least two weeks old, to both shoulders and her right arm. J was diagnosed as being a victim of the ‘battered child syndrome.”

The defendant was arrested and charged with one count of assault in the second degree in violation of General Statutes § 53a-60, six counts of assault in the third degree in violation of General Statutes § 53a-61, and seven counts of risk of injury to a child in violation of General Statutes § 53a-21. The defendant pleaded not guilty and elected to be tried by a jury. During the trial, the state withdrew one charge of assault in the third degree and one count of risk of injury. The jury acquitted the defendant of one count of assault in the third degree and one count of risk of injury and convicted him of the ten remaining charges.

I

The defendant’s first claim of error is that the trial court erred in charging the jury on the crime of risk of injury to a child. The defendant claims that the trial court failed to add the “judicial gloss” that is necessary to prevent the statute from being unconstitutionally vague.

The defendant concedes that this issue was never raised at trial, but seeks review under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 526 (1973). Because the defendant has a due process right to correct jury instructions; State v. Preyer, 198 Conn. 190, 197, 502 A.2d 858 (1985); we will review this claim.

The defendant relies heavily on the case of State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), asserting that it mandates that a trial court apply a judicial gloss when it instructs a jury on the elements of § 53-21. In Schriver, the defendant had followed the victim and then grabbed her around the waist while saying, “Don’t worry, all I want to do is feel you.” Id., 457. The court held that § 53-21 was unconstitutionally vague as applied to those facts (1) because the statute did not provide fair warning to the defendant that his conduct was prohibited and (2) because the defendant’s conduct did not “fall within the confines of § 53-21.” Id., 466. In so holding, the court noted that the type of conduct prohibited by § 53a-21 had been limited by prior judicial gloss to instances of “deliberate, blatant abuse.” Id. The court illustrated the “gloss” that limits the statute by referring to a string of cases in which the victims had been subject to flagrant physical abuse. See id.

Despite the defendant’s averments, there is nothing in Schriver to suggest that it imposes a requirement that the court instruct the jury about the limited applicability of § 53-21. Schriver merely holds that conduct that does not rise to the level of flagrant physical abuse is not covered by the statute despite the statute’s facially broad language. Id., 467. There can be no doubt that in this case the defendant’s conduct constituted the kind of deliberate, flagrant abuse that is encompassed by the statute and its application cannot be questioned. See State v. Pickering, 180 Conn. 54, 65, 428 A.2d 322 (1980).

To the extent, however, that the defendant is actually claiming that the trial court’s instructions were inadequate, we note that the trial court properly instructed the jury concerning the elements of § 53-21. The trial court told the jury that it was not permitted to find the defendant guilty for committing “any act,” but must find that he acted wilfully and “that he either intended the resulting injury to the victim, or he knew that the injury would occur, or that his conduct was of such a character that it demonstrated a reckless disregard of the consequences.” The trial court also instructed the jury on each risk of injury count by referring the jury to the specific abuse alleged by the state. Under these instructions, there is no danger that the jury convicted the defendant by an arbitrary and discriminatory application of the law.

II

The defendant’s second claim is that the trial court erred in failing to instruct the jury in accordance with the provisions of General Statutes § 53a-18 (l). The defendant did not file a request to charge concerning this issue as required by Practice Book § 852. Although the defendant admits that he failed to preserve this claim properly, he again asks for review under State v. Evans, supra. The defendant claims that such review is warranted because it is reasonably possible that the jury was misled on essential elements of the crimes with which he was charged. We disagree.

Under General Statutes § 53-18 (1), a person entrusted with the care of a minor may use reasonable physical force against the minor under certain circumstances. Pursuant to that statute, the defendant raises a defense that his use of force was justified. The state has “the burden of disproving such defense beyond a reasonable doubt.” General Statutes § 53a-12 (a); State v. Webley, 17 Conn. App. 200, 203, 551 A.2d 428 (1988). Although it is generally true that a defendant is entitled to an appropriate defense instruction when it is warranted by the evidence; see, e.g., State v. Webley, supra; our Supreme Court has expressly stated that the trial court does not have a constitutional duty to instruct on a defense sua sponte. State v. Preyer, supra, 198 n.9. The defendant’s claim, therefore, is not of constitutional proportions and we decline to review it. Because the language of General Statutes § 53a-18 (1) does not impose a mandatory duty on the trial court to give such an instruction, we also decline to review the claim under the plain error doctrine. See Practice Book § 4185; see also State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

Ill

The defendant’s third claim of error challenges the sufficiency of the evidence on counts one and twelve of the information. Those counts stem from the allegation in the information that the defendant broke the victim’s left arm; count one charged assault in the second degree, and count twelve charged risk of injury to a minor. This claim of error requires little discussion.

Our role in reviewing sufficiency of evidence claims is well established. We construe the evidence presented at trial in a light most favorable to sustaining the verdict, and then determine whether the jury could reasonably have found, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Cavallo, 200 Conn. 664, 673, 513 A.2d 646 (1986); State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985). Our review of the record reveals that the jury was more than justified in finding that the defendant engaged in a deliberate pattern of violence against J, which included the breaking of her arm, and that he did so with the intent required by General Statutes §§ 53a-60 (a) (1) and 53-21. There is no merit to this claim of error.

IV

In the defendant’s fourth claim of error, he contends that the trial court erred in not presenting the jury with the factual question of whether J’s left arm was broken in Connecticut or New York. Because the Connecticut courts have no jurisdiction over an offense committed in New York; see State v. Amarillo, 198 Conn. 285, 312, 503 A.2d 146 (1986); the defendant argues that he was denied “fundamental due process” by the trial court’s failure to instruct the jury regarding the situs of the infliction of the particular injury in question.

The defendant failed to preserve this instructional claim of error at trial, but now seeks review under Evans and the plain error doctrine. Practice Book § 4185. We afford the defendant neither avenue of review.

At trial, the state presented sufficient evidence to allow the jury to reasonably conclude that the defendant had broken J’s arm in Connecticut. The trial testimony of Mahoney and the defendant himself substantiated the state’s claim that J’s arm was broken before a trip to New Rochelle, New York. Our review of the evidence reveals no evidence from which the jury could conclude that J broke her arm in New York. A trial court is not required to give any instruction unsupported by the evidence. See State v. Gasparro, 194 Conn. 96, 113, 480 A.2d 509 (1984), cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). This claim of error, then, does not rise to the level of a fundamental constitutional issue reviewable under Evans, nor does it amount to injustice requiring review under the plain error doctrine. See Practice Book § 4185.

V

The defendant’s next claim is that the trial court erred by failing to give the jury a unanimity charge on counts four and seven. Because the defendant failed to request such a charge, he again seeks Evans review. “[Bjecause the right to a unanimous verdict is a fundamental right and implicates the defendant’s right to a fair trial, we will review an unpreserved claim that the trial court’s instructions violated the defendant’s right to a unanimous verdict. State v. Suggs, 209 Conn. 733, 760, 553 A.2d 1110 (1989); State v. Evans, [supra, 70].” State v. Spigarolo, 210 Conn. 359, 388, 556 A.2d 112 (1989).

“The rule requiring a specific unanimity charge ‘only applies when the particular count under consideration by the jury is based on multiple factual allegations which amount to multiple statutory subsections or multiple statutory elements of the offense involved. It does not apply, and such an instruction is not required of the court, where the multiple factual allegations do not amount to multiple statutory subsections or to multiple statutory elements of the offense.’ State v. Mancinone, 15 Conn. App. 251, 274, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989).” (Emphasis added.) State v. Thomas, 19 Conn. App. 44, 46, 560 A.2d 486 (1989).

In this case, the defendant was charged in separate and distinct counts with violations of § 53-21 and § 53a-61 (a) (1). The charges within those counts did not involve multiple statutory elements or subsections, and therefore the unanimity principle does not apply here. Cf. State v. Ostolaza, 20 Conn. App. 40, 564 A.2d 324 (1989). We note also that the evidence itself was not complex and did not create the danger of confusion. See State v. Bailey, 209 Conn. 322, 337, 551 A.2d 1206 (1988). Moreover, the trial court instructed the jury that “the same act or actions may involve the commission of two or more criminal acts, and the same evidence may be relevant to several crimes, but you must consider each separate act. You must . . . review all the evidence and determine separately each count.” (Emphasis added.) After reviewing the allegations in each of the counts, the court further instructed the jury that its verdict had to be unanimous as to “each of the crimes charged in each of the counts.” This instruction was sufficient correctly to apprise the jury that it had to be unanimous in its verdict as to each count. There is no merit to this claim.

VI

The defendant next claims that the trial court erred in granting the state’s motion in limine thereby restricting his ability to cross-examine Mahoney about interest, bias and motive in testifying against the defendant, based on the large number of pending criminal charges against Mahoney. We disagree.

At the time of trial, Mahoney, a key state’s witness, was incarcerated on twenty-seven pending felony charges. During Mahoney’s direct examination, the state made a motion in limine that the defense not be allowed to use any of Mahoney’s pending charges for the purpose of impeachment. The defendant objected and indicated that he also intended to cross-examine Mahoney as to any agreements and expectations he might have concerning the pending charges because of his testimony in the defendant’s case.

The trial court initially ruled that the defendant could ask Mahoney about the number of pending charges against him, but that he could not question about the circumstances of each individual charge. The court also indicated that the defendant could not question Mahoney about the existence of any formal agreement regarding a plea bargain in consideration of Mahoney’s testimony. The court stated that it felt bound by the state’s representation that no such agreement existed.

“The right of an accused effectively to cross-examine an adverse witness is embodied in the confrontation clause of the sixth amendment. Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); State v. Heinz, 3 Conn. App. 80, 85-86, 485 A.2d 1321 (1984). A claim of undue restriction on cross-examination ordinarily involves a two-pronged analysis: (1) whether the constitutional standard has been met; and (2) if so, whether the court nonetheless abused its discretion. State v. Heinz, supra, 86. ‘The constitutional standard is met when defense counsel is “permitted to expose to the jury the facts from which the jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” ’ State v. Gaynor, 182 Conn. 501, 509, 438 A.2d 749 (1980), quoting Davis v. Alaska, supra, 318.” State v. Diorio, 12 Conn. App. 74, 76, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), cert. denied, 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988).

Against this analysis, we find no error regarding this claim. First, the defendant was allowed to cross-examine Mahoney about whether there was a formal agreement between him and the state. During the cross-examination of Mahoney, defense counsel and the trial court engaged in the following colloquy held outside the presence of the jury:

“Mr. Crozier: I want to get into whether he has made plea bargains.
“The Court: That you can do.”

Shortly thereafter, the following exchange occurred during the actual cross-examination of Mahoney:

“Mr. Crozier: Have you been offered or promised anything in exchange of testifying?
“Vincent Mahoney: Absolutely not, no.”

Thus, despite the trial court’s prior indication, the defendant cross-examined Mahoney about plea bargains in exchange for trial testimony, and the witness unequivocally denied any such agreement.

Furthermore, the record clearly reveals that the court allowed the defendant to cross-examine Mahoney concerning the circumstances of some of the individual pending charges, even though the court ultimately reaffirmed its earlier ruling and stopped the defendant from continuing such a line of questioning. It is disingenuous for the defendant to suggest that the constitutional standard expressed in State v. Gaynor, supra, has not been met. It is clear from the record that the defendant was “ ‘permitted to expose to the jury the fact from which the jurors . . . could appropriately draw inferences relating to the reliability of the witness.’ ” Id.

With respect to the second prong of the analysis, we note that “ ‘[t]o establish an abuse of discretion, appellants must show that the restrictions imposed upon their cross-examination were clearly prejudicial.’ ” Id., 510. Our careful review of the record leads us to conclude that the defendant was given sufficient opportunity to cross-examine Mahoney to demonstrate bias, prejudice or improper motive. “When the right to cross-examine for this purpose is not altogether denied, the scope of such examination rests in the court’s discretion. [State v. Luzzi, 147 Conn. 40, 47, 156 A.2d 505 (1959)].” State v. Shipman, 195 Conn. 160, 163, 486 A.2d 1130 (1985); State v. Diorio, supra. Here, we conclude that there was no abuse of the trial court’s discretion.

VII

The defendant next contends that the trial court erred in admitting a statement made in his presence as evidence of an admission by silence. During its casein-chief, the state called Officer Peter Vitro of the New Rochelle, New York, police department as a witness. Vitro testified that on May 17, 1986, he investigated a citizen’s complaint of possible child abuse involving J. The defendant, Hayes, Mahoney, and K and her two children, had travelled to New Rochelle on that day. During the course of the investigation, Vitro asked the defendant about J’s injuries, and the defendant responded that J had fallen off a bicycle and over a retaining wall in Waterbury. Vitro also questioned K about the injuries, and she responded that on May 14, 1986, she and the defendant had taken J to Saint Mary’s Hospital in Waterbury. Vitro then testified that the defendant, who was present and within earshot of K’s statement, made no reply or comment. The state later introduced hospital records that indicated that no such visit had taken place on that date.

The defendant objected to the testimony on K’s statement as hearsay, and the state first sought to have the statement admitted as “adoptive hearsay.” The court rejected this basis for the offer, but allowed the statement because “[i]t was the type of accusation where ordinarily a person would deny it.” It is clear from the transcript of the trial that the court regarded the defendant’s silence upon hearing K’s statement as an admission by silence or an adoptive admission. See State v. Harris, 182 Conn. 220, 229, 438 A.2d 38 (1980).

“The rule in Connecticut is that when a statement, accusatory in nature, made in the presence and hearing of an accused, is not denied or explained by him, it may be received into evidence as an admission on his part. State v. Leecan, 198 Conn. 517, 522, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Cook, 174 Conn. 73, 76, 381 A.2d 563 (1977); State v. Yochelman, 107 Conn. 148, 152, 139 A. 632 (1927).” State v. Daniels, 18 Conn. App. 134, 138, 556 A.2d 1040 (1989). The inference of assent, however, may be made only when no other explanation is equally consistent with silence. State v. Harris, supra.

In the present case, the state concedes, and we agree, that K’s statement “did not fit strictly within the confines of the rule enunciated in Harris since [K’s] comment was a misstatement by her, not accusatory in nature, and, therefore, apparently would not naturally call for a reply from the defendant.” In addition to the fact that K’s statement lacked the characteristics of accusation, there were also a number of plausible explanations for the defendant’s failure to respond, including his desire not to compound the problem of the damaging misstatement for K, a person with whom he lived in a family-type relationship.

Nonetheless, the state argues that although the trial court may have improperly admitted K’s statement as an adoptive admission, the defendant has failed to demonstrate the harmfulness of that error. We agree.

We first note that the defendant’s evidentiary claim does not involve the violation of a constitutional right. “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him.” State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). The question is whether the claimed erroneous action of the trial court is likely to have affected the result of the trial. State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986); State v. Gonzales, 196 Conn. 115, 119, 491 A.2d 1067 (1985). Under this standard the defendant’s claim fails.

The essence of the defendant’s claim of harmfulness is that, during the state’s final argument to the jury and as a part of the state’s response to the defendant’s motion for judgment of acquittal, the state “relied heavily” on the theory of consciousness of guilt as shown by the defendant’s silence. He claims that the harmfulness of the error is especially relevant to counts one and twelve of the information (concerning J’s broken arm) because there was no direct evidence of how that injury occurred and that “[i]t is probable that the jury relied on this evidence in reaching their verdicts. . . We reject the defendant’s contention.

As part of its case-in-chief, the state presented evidence in the form of eyewitness testimony and medical records regarding all of J’s injuries. From that testimony, the jury could have concluded that the defendant not only broke J’s arm, but caused her other injuries as well. With respect to J’s broken arm, the state also introduced into evidence the totally contradictory explanation of the defendant himself, an explanation which obviously was rejected by the finders of fact. Given the weight of the state’s evidence against the defendant in this case, the defendant’s claim that the erroneously admitted evidence in question was clearly prejudicial to him is without merit.

VIII

The defendant next claims that the prosecutor’s statement made during her closing argument regarding the meaning of “proof beyond a reasonable doubt” constituted a violation of the defendant’s constitutional right to a fair trial. “It is fundamental that proof of guilt in a criminal case must be beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); United States v. Pine, 609 F.2d 106, 107 (3d Cir. 1979); State v. Mason, 186 Conn. 574, 585, 442 A.2d 1335 (1982); State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Smith, 183 Conn. 17, 27-28, 438 A.2d 1165 (1981).” State v. Del-Vecchio, 191 Conn. 412, 419, 464 A.2d 813 (1983). The defendant again seeks Evans review for this unpreserved claim of error. Because the right implicated is the defendant’s right to be convicted by the proper burden of proof, we will grant Evans review. See State v. Findlay, 198 Conn. 328, 345, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986). The claim, however, requires little discussion.

During the state’s closing argument, the prosecutor gave the following example of the concept of reasonable doubt: “I know that it sounds like a confusing term. But, ladies and gentlemen, everyday of your lives, you make decisions beyond a reasonable doubt. And, that simply is the fact that [if] there is no evidence in front of you that something should be different then you accept what you have in front of you.

“And, let me give you an example. I always think examples are so much easier. When you drove to work this morning . . . [t]here was probably another car coming in the other direction. You looked at the car. The wheels weren’t wobbling, it wasn’t crossing over the line, it wasn’t doing anything that you felt that looked immediately dangerous to you.

“So you made a decision beyond a reasonable doubt to proceed in the manner you were and let that car go.

“Is it possible that the car could have veered off and hit you? Of course, it was. Things are always possible .... But, if you do not have any evidence in front of you, then you can make a decision beyond a reasonable doubt as an everyday occurrence in your life.” The defendant argues that this example used by the prosecutor to explain “reasonable doubt” impermissibly diluted the state’s burden of proof and thus constituted reversible error. We disagree.

We begin by noting that this claim of error is couched in terms of the prosecutorial misconduct amounting to a denial of the defendant’s due process right to a fair trial. “ ‘[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982); State v. Cosgrove, 186 Conn. 476, 489, 442 A.2d 1320 (1982).” State v. Couture, 194 Conn. 530, 562, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985). Although we find that the prosecutor’s attempt to explain the term “reasonable doubt” was inartful, we conclude that the defendant was not denied his right to due process and a fair trial as a result of that action.

Although the defendant requested no curative instruction from the court, we note that the court very adequately instructed the jury as to the concept of reasonable doubt. Additionally, the trial court properly instructed the jury that it was the court’s function to instruct on the law and that the jury was bound by oath to accept only those instructions as given by the court. “It is reasonable to presume that jurors will adhere to the court’s instructions.” State v. McCall, 187 Conn. 73, 80, 444 A.2d 896 (1982); State v. Nelson, 17 Conn. App. 556, 568, 555 A.2d 426 (1989). Furthermore, the prosecutor herself mitigated any possible effect of her challenged comments when she informed the jury of the following: “Anything which I say to you about the law which differs from the way Judge Meadow gives it to you, you must disregard what I say and take what he says.”

On the basis of this review of the record, we conclude that there is no merit to the defendant’s claim.

IX

The defendant’s final claim of error is that his constitutional right against double jeopardy was violated by his convictions of assault in the second degree or assault in the third degree in addition to risk of injury, for the same behavior. The defendant acknowledges that these statutes generally do not constitute one offense for double jeopardy purposes. See State v. Davis, 13 Conn. App. 667, 671, 539 A.2d 150 (1988); State v. Trujillo, 12 Conn. App. 320, 334-36, 531 A.2d 142 (1987). He claims, however, that the judicial gloss of State v. Schriver, supra, has interpreted the risk of injury statute as embodying the same type of mental state as the assault statutes, that is, specific intent. This claim is without merit.

While the assault statutes require specific intent to cause injury, our Supreme Court has recently reiterated that the risk of injury statutes require only a “general intent on the part of the defendant to perform the act which resulted in the injury . . . .” State v. McClary, 207 Conn. 233, 240, 541 A.2d 96 (1988). Contrary to the defendant’s contention, nothing in State v. Schriver, supra, decided less than a month after McClary, suggests that the risk of injury statute, which forbids conduct that is likely to injure the health of a child, requires specific intent. “The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.” State v. Snook, 210 Conn. 244, 264, 555 A.2d 390. Because we conclude that the offenses as charged in the information are distinct and separate for the purposes of double jeopardy, the defendant has not met this burden, and his double jeopardy claim must fail.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-60 provides in pertinent part: “assault in the second degree: class d felony, (a) A person is guilty of assault in the second degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or (4) for a purpose other than lawful medical or therapeutic treatment, he intentionally causes stupor, unconsciousness or other physical impairment or injury to another person by administering to such person, without his consent, a drug, substance or preparation capable of producing the same; or (5) he is in the custody of the commissioner of correction, confined in any institution or facility of the department of correction, or is a parolee from a correctional institution and with intent to cause physical injury to an employee of the department of correction or an employee or member of the board of parole, he causes physical injury to such employee or member.”

       General Statutes § 53a-61 (a) (1) provides: “assault in the third degree: class a misdemeanor, (a) A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of a deadly weapon, a dangerous instrument or an electronic defense weapon.”

       General Statutes § 53-21 provides: “injury or risk of injury to, or impairing morals of, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-18 (1) provides: “USE OF REASONABLE PHYSICAL FORCE OR DEADLY PHYSICAL FORCE GENERALLY. The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: (1) A parent, guardian, teacher or other person entrusted with the care and supervision of a minor or an incompetent person may use reasonable physical force upon such minor or incompetent person when and to the extent that he reasonably believes it is necessary to maintain discipline or to promote the welfare of such minor or incompetent person.”

       Practice Book § 852 provides: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”

       General Statutes § 53a-12 (a) provides: “defenses; burden of proof. (a) When a defense other than an affirmative defense, is raised at a trial, the state shall have the burden of disproving such defense beyond a reasonable doubt.”

       The defendant told a New Rochelle police officer that J had broken her arm when she fell off of a retaining wall in Waterbury. At trial, he testified that she had hurt her arm when she fell down the cement stairs and that her arm was injured and “swelling up” before their trip to New York.

       Counts four and seven of the state’s substitute information read as follows:
      “On the fourth count the State further accuses the said JOSEPH TOR-RICE and charges that in the City of Waterbury on divers days, May 1 to May 18, 1986, the said JOSEPH TORRICE did commit the offense of assault in the third degree in violation of Conn. Gen. Stat. 53a-61 (a) (1) in that he kicked the defendant in the lower back and buttocks.
      “On the seventh count the State further accuses the said JOSEPH TOR-RICE and charges that at the City of Waterbury on or about May 1,1986, to May 18,1986, the said JOSEPH TORRICE did commit the crime of risk of injury to a minor in violation of Conn. Gen. Stat. 53-21 in that he kicked the victim in the buttocks and lower back.”

       At trial the following exchange took place:
      “The Court: That is not your claim, though, that the pending charges in any way are going to be considered because of his testimony here. Is that your claim?
      “Mr. Crozier [the defendant’s lawyer]: I am going to ask him that. I am certainly going to get into that, Your Honor. I want him under oath to tell me no. His lawyer told me no, but I have a right to ask under oath.
      “The Court: If he says no as of the time now, the court only has the evidence that is going to be no, and I have to take the representations of the state’s attorney that there isn’t such thing and it won’t open the door, I am going to sustain the objection of the state.”

       See footnote 7, supra.

       The trial court instructed the jury as follows: “We are both judges in a very real sense. I am a judge of the law, and you are the judges of the facts. I now instruct you that each of you is bound to accept the law as I give it to you. It is your duty to follow my instructions and conscientiously apply the law as I give it to you.
      “So, if you have a notion of what the law is or should be that differs from what I state the law is, you are bound by your oath to set aside your notion of the law and strictly apply the law as I state it to be.”

       We note that, although the defendant seeks Evans review of this claim, the claim was properly preserved in the trial court during the defendant’s motion for judgment of acquittal argued prior to his sentencing.

       The defendant also claims that the language used in the information indicates that the crimes of risk of injury could not have been committed without having committed the crime of assault, and therefore that conviction of both assault and risk of injury violates his right against double jeopardy. After carefully reviewing the entire record, we conclude that the defendant takes far too narrow a view of the language used.


text:
    State of Connecticut v. John Franklin
    (7054)
    Dupont, C. J., O’Connell and Foti, Js.
    Argued April 11
    decision released September 26, 1989

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

      James M. Ralls, deputy assistant state’s attorney, with whom, on the brief, were Herbert Appleton, assistant state’s attorney, and Susan C. Marks, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the trial court’s granting of the state’s petition to continue his commitment to the custody of the commissioner of mental health. He claims that the trial court lacked jurisdiction to act on the petition and, in the alternative, that the ruling was erroneous. He also challenges the original proceeding in which he was found not guilty by reason of insanity.

The relevant facts are set forth in Franklin v. Berger, 211 Conn. 591, 560 A.2d 444 (1989).

“On January 5,1978, a criminal court adjudged the petitioner not guilty by reason of insanity. Pursuant to General Statutes (Rev. to 1977) § 53a-47 (repealed and replaced by General Statutes § 17-257), the petitioner was sent to Norwich Hospital for a psychiatric examination. On April 27, 1978, the trial court found the petitioner to be a danger to himself or others and ordered him committed to a mental institution for a term of ten years pursuant to General Statutes (Rev. to 1977) § 53a-47 (b). See General Statutes § 17-257c (e) (1) (A). Thereafter, the state declined to credit the petitioner’s pretrial jail time against the maximum term of his commitment set by the court.” Id., 593.

The defendant filed a petition for a writ of habeas corpus on March 24, 1987, alleging that the state’s refusal to grant him credit for his pretrial confinement was a violation of the equal protection guarantees of the federal and state constitutions. The habeas court rejected this argument, and denied his petition. That decision was upheld in Franklin v. Berger, supra. These facts are the background of the present appeal.

In challenging the jurisdiction of the trial court to act on the state’s petition, the defendant claims (1) that the state’s petition for the defendant’s continued commitment was untimely and (2) that the trial court had no authority to grant the state’s petition.

During the period in question, General Statutes (Rev. to 1987) § 17-257n (c) provided that “[i]f reasonable cause exists to believe that the acquittee remains mentally ill to the extent that his discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others, the state’s attorney, at least ninety days prior to such expiration, may petition the court for an order of continued commitment of the acquittee.”

The defendant argues that the state failed to comply with the ninety day period required by § 17-257n (c) because although it served the defendant with its petition for continued commitment on March 26, 1987, it failed to file the petition with the court until April 11, 1988, less than two weeks prior to the expiration of the defendant’s term. Thus, he claims the trial court lacked jurisdiction to act on the state’s petition. We disagree.

The file discloses that the defendant filed several motions to dismiss the state’s petition in which he specifically stated that the petition was filed on March 26, 1987. Hence, despite his objection to the court’s jurisdiction to act on the petition, his pleadings acknowledged that the petition was timely. See West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 312, 514 A.2d 734 (1986). Consequently, the defendant’s claim is meritless.

In his next jurisdictional claim, the defendant argues that General Statutes § 17-257n, which governs discharge and recommitment, does not authorize the court to grant petitions for continued confinement.

In Franklin v. Berger, supra, 597-604, our Supreme Court acknowledged the trial court’s inherent authority to continue the defendant’s confinement after his original term had expired. Therefore, this claim is also meritless.

The defendant argues, in his next claim, that the court erroneously granted the state’s petition because it expressed the view on the record that it had no power to compel the defendant to receive the treatment he needs to prevent him from being dangerous to himself and others.

We will not review this claim because the defendant failed to brief it adequately. See Practice Book § 4065. Instead, he simply cited State v. Putnoki, 200 Conn. 208, 218, 508 A.2d 1329 (1986), and stated that the trial court “committed precisely the same error . . . and for the same reasons its judgment should be vacated.” This bald assertion of error, without any analysis, is insufficient to warrant appellate review and is deemed abandoned. See Buchetto v. Haggquist, 17 Conn. App. 544, 555, 554 A.2d 763, cert. denied, 211 Conn. 808, 559 A.2d 1141 (1989); Menard v. Gentile, 7 Conn. App. 211, 216 n.5, 508 A.2d 456 (1976). Moreover, the record fails to indicate that the defendant was seeking release conditioned upon his agreement to receive treatment. Nor did he object or ask the court to clarify its view that it could not compel the defendant to continue his treatment. Accordingly, the defendant has failed to meet his burden of showing that there was an error in the judgment from which he appeals. Janet v. Scarpetti, 17 Conn. App. 825, 552 A.2d 1225 (1989).

The defendant argues, in his final claim, that all of the proceedings in the Superior Court from 1978 to the present time should be vacated and that this case should be remanded with instruction to begin again. In support of this claim, he asserts that the record of the present case fails to show that he waived his right to contest the state’s proof of factual guilt with the understanding of either the law or the facts relevant to such a waiver. He urges this court to treat his “stipulated insanity defense” as a guilty plea and require an on-the-record showing that he fully understood the consequences of his decision.

We cannot reach the merits of the defendant’s claim because he failed to provide this court with the transcript of the 1978 proceedings as required by Practice Book §§ 4061 and 4078. Nor has he referred to portions of the record to support his argument. Practice Book § 4065. “ ‘It is important to recognize that a claim of error cannot be predicated on an assumption that the trial court acted incorrectly.’ ” Rosenblit v. Danaher, 206 Conn. 125, 134, 537 A.2d 145 (1988), quoting Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407, 480 A.2d 552 (1984). Rather it must be presumed that the trial court acted properly. Rosenblit v. Danaher, supra. Without an adequate record, we are precluded from reviewing this claim. Commissioner v. Youth Challenge of Greater Hartford, Inc., 206 Conn. 316, 322, 537 A.2d 480 (1988); Rosenblit v. Danaher, supra; Sardilli v. Sardilli, 16 Conn. App. 114, 119 n.6, 546 A.2d 926 (1988).

There is no error.

In this opinion the other judges concurred.

       Jurisdiction over the defendant was subsequently transferred to the Psychiatric Security Review Board (PSRB), pursuant to General Statutes § 17-257 et seq.

       General Statutes § 17-257n (c) was subsequently amended to require the state to petition the court at least 135 days prior to the expiration of the acquittee’s release date. Public Acts 1987, No. 87-486.

       The defendant raised this issue in a motion to dismiss the state’s petition for continued commitment, which was denied.

       We are not aware of the existence of a “stipulated insanity defense” as a legal animal.