author: LAVERY, C. J.

text:
    MORTON J. DOWNEY, SR. v. RETIREMENT BOARD OF THE CITY OF WATERBURY ET AL.
    (AC 20614)
    Lavery, C. J., and Spear and Flynn, Js.
    Argued April 4
    officially released October 9, 2001

      Linda S. Tableman, for the appellant (plaintiff).

      Paula N. Anthony, for the appellees (defendants).
   Opinion

LAVERY, C. J.

The plaintiff, Morton J. Downey, Sr., appeals from the judgment rendered by the trial court in favor of the defendants denying the plaintiffs request for a recalculation and increase of his disability pension. The plaintiff contends that the court improperly found that the disability pension was equitable. We agree and reverse the judgment of the trial court.

The following are the relevant facts and procedural history. The plaintiff began working for the Waterbury fire department in September, 1953. In July, 1982, the plaintiff applied for a voluntary disability pension on the basis of the medical diagnosis that he was suffering from heart disease. On September 29, 1982, the defendant Waterbury retirement board (board) granted the plaintiffs application, awarding him a 76 percent disability pension. The plaintiff received workers’ compensation benefits until January, 1988, for a 35 percent permanent partial disability of the heart.

In 1987, a physical examination revealed that the plaintiff did not have heart disease and that he was able to return to work. Thereafter, in March, 1987, the plaintiff applied to the board to be reinstated as a firefighter for the Waterbury fire department and to be removed from the disability pension roll. The board refused to reinstate the plaintiff, and the plaintiff brought an action in the Superior Court. After a trial, the court ordered that the plaintiff be reinstated. The board failed to reinstate the plaintiff, and the matter ultimately came before the commission on human rights and opportunities (commission). The commission determined that the defendants’ refusal to reinstate the plaintiff was illegal discrimination. In addition, the commission ordered the defendants to reinstate the plaintiff with full benefits and vested pension credits retroactive to April 11, 1988, and to pay him damages, back pay and attorney’s fees.

The fire department reinstated the plaintiff on February 17, 1993. In April, 1995, the plaintiff applied for disability retirement, citing injuries from a January, 1977 fire engine accident. Subsequently, on May 12, 1995, the plaintiff injured his back and knees while fighting a house fire. On June 14, 1995, the board announced that the plaintiff would receive a disability pension based on 62 percent of his salary. The board arrived at this figure using thirty-one years of service as one of the factors to determine the plaintiffs disability pension award. In November, 1996, the plaintiff filed an application with the board to review and increase the amount of his disability pension award in light of the commission’s order to give the plaintiff credit for the nearly five years of vested pension credit that he would have received if he had been reinstated on April 11, 1988. The board denied the plaintiffs application, and the plaintiff appealed to the Superior Court.

At trial, the plaintiff submitted evidence that the board had been presented with evidence of his years of service, medical reports by the board’s impartial medical examiners and the applicable collective bargaining agreements. The plaintiff also presented the court with evidence that the board had credited him with only thirty-one years of service in contravention of the commission’s order. Nevertheless, the court found that the board’s refusal to reinstate the five years of pension credit was not unreasonable, arbitrary, illegal or an abuse of its discretion and it dismissed the appeal. This appeal followed. Additional facts will be provided as necessary.

I

The plaintiff first claims that the court improperly found that the disability pension awarded to him was equitable when the board did not credit all of the plaintiffs years of service, including imputed service from April 11, 1988, until his reinstatement on February 17, 1993. We agree with the plaintiff and reverse the judgment of the trial court.

The applicable standard of review when a trial court upholds a decision of an administrative agency is well settled. “Where the administrative agency has made a factual determination, the scope of review ordinarily is expressed in such terms as substantial evidence or sufficient evidence. . . . Where, however, the administrative agency has made a legal determination, the scope of review ordinarily is plenary.” (Citation omitted.) Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 581, 735 A.2d 231 (1999). “Pursuant to our standard of review, we examine whether the conclusions of law reached by the trial court resulted from a correct application of the law to the facts of this case.” Waterbury Teachers Assn. v. Freedom of Information Commission, 42 Conn. App. 700, 705, 682 A.2d 125 (1996), rev’d on other grounds, 240 Conn. 835, 694 A.2d 1241 (1997); see also Alexander v. Retirement Board, 57 Conn. App. 751, 758, 750 A.2d 1139, cert. denied, 254 Conn. 902, 755 A.2d 217 (2000).

The plaintiff claims on appeal that the board failed to give proper credit for his years served. Section 2724 of the charter of the city of Waterbury provides in relevant part that “[a] pension shall be paid to each officer participant who has been retired under this act for life calculated upon the formula used to calculate pensions for participants of the department of which he was a member. ...” The union contract between the city of Waterbury and its firefighters union, article XXXIII, § 9, sets forth that a firefighter’s pension shall be calculated using 2 percent for each year of service. The record shows that the factors that the board took into account when it arrived at the amount of pension to award were the plaintiffs years of service, his medical records and the applicable collective bargaining agreements. It failed, however, to credit fully the plaintiffs years of service. Because the board ignored a clear directive from the commission to credit the plaintiff for the years in which it illegally discriminated against him, the board abused its discretion. Thus, we conclude that the trial court should not have upheld the board’s decision to reduce years of service based on the plaintiffs disability because the commission specifically ordered the board to credit the plaintiff with the years of service from 1988 to 1993.

The decision of the commission specifically reinstated the plaintiff “retroactive to April 11, 1988, with full benefits and pension vested credits from that date.” A decision of the commission aims to address impermissible discrimination. See General Statutes § 46a-51 et seq. “[T]he victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is, he has a right to be restored to the position he would have attained absent the unlawful discrimination. . . . Where prohibited discrimination is involved, the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” (Citation omitted; internal quotation marks omitted.) State v. Commission on Human Rights & Opportunities, 211 Conn. 464, 478, 559 A.2d 1120 (1989).

“It is the [commission] that is charged with the primary responsibility of determining whether discriminatory practices have occurred and what the appropriate remedy for such discrimination must be.” Dept. of Health Services v. Commission on Human Rights & Opportunities, 198 Conn. 479, 488, 503 A.2d 1151 (1986). Here, the decision of the commission “to reinstate [the plaintiff] retroactive to April 11,1988, with full benefits and pension vested credits from that date,” was the remedy intended to eliminate the discriminatory effects of the defendants’ illegal discrimination against the plaintiff. The plaintiffs evidence was sufficient to demonstrate that the defendants failed to credit the years of service that the commission ordered. The board did not appeal from the decision of the commission and it may not now seek to circumvent the unequivocal order of the hearing officer. The proper venue to demonstrate any disagreement with a decision of the commission is the appeal process, not by disregarding such orders under the guise of administrative discretion. Accordingly, we reverse the decision of the trial court and remand the case for a recalculation of the plaintiff’s pension benefits using thirty-six years of service to calculate the plaintiff’s pension.

II

The plaintiff next claims that the court improperly found that the disability pension awarded to him was equitable when it did not include any award for the plaintiffs separate injuries and resulting disabilities.

The plaintiff maintains that a disability pension must be based on the amount that the firefighter would have received had he applied for a service pension and that the retirement board must decide what additional amount should be added to that base amount to compensate the firefighter for his disability. The defendants argue that in the case of a disability pension, unlike a service pension, there is no set formula based on years of service and years of service is only one of the factors to be considered. They maintain that a disability pension can include an award for the disability and still properly be an amount that is less than the disabled firefighter would have been entitled to if he had applied for a service pension. We agree with the plaintiff and remand the case for a determination of whether to increase the plaintiffs pension award in light of the plaintiffs disabilities.

Disability pay is a form of pension. Carilli v. Pension Commission, 154 Conn. 1, 7, 220 A.2d 439 (1966). Furthermore, the inherently dangerous nature of a firefighter’s work is well established. See Grover v. Manchester, 168 Conn. 84, 89, 357 A.2d 922 (“no other municipal employees are called out from the security of their homes to ensure the security of the homes of others”), appeal dismissed, 423 U.S. 805, 96 S. Ct. 14, 46 L. Ed. 2d 26 (1975); Stratford v. Local 134, IFPTE, 201 Conn. 577, 588, 519 A.2d 1 (1986) (firefighters employed in extra risk occupations that justify statutory entitlement to special bonus of certain disability benefits). The defendants’ interpretation of the contract and the charter would lead to the anomalous result of having the amount of pension reduced because a firefighter was disabled on the job. The plaintiff is entitled to his vested pension based on his years of service, and the plaintiffs disability, if proven, would necessitate an increase in his pension, not the reduction proposed by defendants.

In Battaglia v. Waterbury Retirement Board, Superior Court, judicial district of Waterbury, Docket No. 123090 (June 5, 1995), the plaintiff, a Waterbury firefighter, appealed from the decision of the Waterbury board of retirement that awarded him a disability pension. The decision in that case supports the plaintiffs argument here that he should receive at least some additional pension because of his disability. In Battaglia, the trial court upheld a decision of this same board that awarded only a 2 percent increase in a firefighter’s retirement pay because of his disability. The plaintiff argued that the disability award of 2 percent was minimal based on the medical evidence presented to the board. The firefighter in Battaglia had an initial disability award above and beyond his normal retirement pension, and his position was that the amount of the award was too small based on the extent of his disability. The Battaglia court held that the board has discretion to determine what percentage over and above a normal retirement pension a disability warrants. Battaglia offers no guidance for a situation such as in the present case in which a firefighter is denied any additional pension. Indeed, Battaglia merely proposes that, when a board awards an amount for disability that is over and above what would have been awarded at normal retirement, the board has the discretion to determine what the increased percentage will be. Here, the board failed to award any additional amount for disability pension despite the medical testimony regarding the plaintiffs disability. Just as it is not within the board’s discretion to reduce years of service for the plaintiffs disability, the board may not ignore the plaintiffs medical reports, physical condition and disability when determining the plaintiffs pension award.

The plaintiff was examined by two independent physicians at the request of the board pursuant to § 2746 of the Waterbury city charter. The two independent physicians found that the plaintiff was totally and permanently disabled from performing the duties of his occupation as a result of injuries he sustained in 1977. This finding did not even include the injuries that the plaintiff received in a fire in May, 1995, subsequent to his application for disability retirement. In June, 1995, when the board awarded the plaintiff a 62 percent pension, the plaintiff filed a motion for reconsideration, which was denied.

Our legislature has created specific statutes that reflect this state’s policy regarding disability pensions for firefighters. General Statutes § 7-433c creates survivor benefits for police or firefighters disabled or deceased as a result of hypertension or heart disease. That statute provides for additional disability compensation for firefighters who suffer from hypertension or heart disease. Although the plaintiff does not seek a disability pension pursuant to that statute, § 7-433c demonstrates a clear policy of creating additional benefits for certain classes of disabled municipal employees. See Felia v. Westport, 214 Conn. 181, 184, 571 A.2d 89 (1990); see also Carriero v. Naugatuck, 243 Conn. 747, 754, 707 A.2d 706 (1998); Szudora v. Fairfield, 214 Conn. 552, 555, 573 A.2d 1 (1990). It is incongruous specifically to increase a firefighter’s pension for heart and hypertension disability, but to reduce a firefighter’s pension when the disability arises from falling through a burning staircase, an accident in a fire engine or other job related injuries.

It appears that the board and the trial court both operated under the impression that a disability pension should be the same as, or less than, a service pension, and that it was therefore proper for the plaintiffs pension to be based on his years of service and not on his physical disability. The record supports the conclusion that the board made its award based solely on the plaintiffs years of service. The record reflects that the board based its decision on thirty-one years of service and that the medical opinion of the two independent physicians appointed by the board either was not considered or was disbelieved. “While we recognize that an administrative agency is not required to believe any of the witnesses, including expert witnesses ... it must not disregard the only expert evidence available on the issue when the commission members lack their own expertise or knowledge.” (Citation omitted.) Tanner v. Conservation Commission, 15 Conn. App. 336, 341, 544 A.2d 258 (1988); see also Feinson v. Conservation Commission, 180 Conn. 421, 429, 429 A.2d 910 (1980).

There would, however, be no need for a disability award if it was to be based on length of service. Disability pensions for firefighters and police injured on the job are provided for in the charter and referred to in the contract between the city of Waterbury and Waterbury Firefighters Association, Local 1339. We, therefore, conclude that the court’s decision to uphold the board’s apparent failure to include any award for the plaintiffs disability was incorrect.

Ill

The plaintiffs final claim is that the trial court improperly excluded evidence that showed that the board abused its discretion when it failed to consider all of the plaintiffs years of service and to award a percentage of disability over and above the plaintiffs years of service. We do not address this claim, however, because we agree with the plaintiffs first two claims, which are dispositive of the appeal.

The judgment is reversed and the case is remanded with direction to render judgment sustaining the appeal and remanding the case to the board with direction to award the plaintiff the correct number of years of service and to order a new hearing on the plaintiffs disability application. At that hearing, the board shall consider the medical evidence, not only of the plaintiffs injuries sustained in the line of duty in 1977, but also of those injuries sustained in the line of duty in May, 1995, and the amount of disability that resulted therefrom, if any.

In this opinion the other judges concurred.

       The defendants are the retirement board of the city of Waterbury and its individual members, Chairman Pasquale A. Mangini, Alderman Nicholas Augelli, Commissioner David Bozzuto, Commissioner Genevieve Cavallerano and Commissioner Joseph Cronin.

       See also Downey v. Retirement Board, 22 Conn. App. 172, 174-75, 576 A.2d 582, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990).

       The trial court concluded: “The court has reviewed the return of record . . . briefs, testimony and arguments of counsel and finds that the board did not act unreasonably, arbitrarily, illegally or in abuse of its discretion.
      “At its meeting of June 14, 1995, the board had before it all relevant information to determine an equitable disability pension for the plaintiff. Thereafter, the board allowed the plaintiff and his counsel at several meetings to provide the board with additional information claiming otherproceedings between the board and the plaintiff [were] relevant and material to support a higher pension. The board reviewed the material and concluded that [its] original decision was equitable.
      “Since the plaintiff requested a disability pension, that is what the board considered. His claim for a higher pension based upon years of service and additional injuries is of no avail.”

       On April 11, 1988, the Superior Court ordered that the plaintiff be reinstated. The plaintiff was not reinstated until February 17, 1993.

       Article XXXIII, § 9, of the union contract also provides: '‘Effective July 1, 1986, Ihe amount of pension, or pension entitlement, in terms of the amount of pension dollars shall be the product of (A) (that is, the percentage factor), multiplied by (B) (that is, the annual pay factor). In this formula, (A) equals the percentage which is determined by multiplying the number of years of service by two percent (2%) for each year of service and (B) is the annual pay which shall be computed on the basis of the employee’s weekly base salary, prescribed in Article XXVI hereof, (which is in effect as of the date that the employee filed the said application for service retirement), multiplied by fifty-two (52) weeks plus the appropriate longevity amount as prescribed in Article XXI hereof, to which the said employee is entitled as of the date of the filing of his application for retirement, plus twenty-five percent (25%) of the Article XI, Section 5 terminal leave pay, plus, if applicable to a given employee, the Article XXVII, Section la, Regular Fire Drivers pay. Also included in (B) shall be the total of any overtime payments prescribed in Article XVIII, plus Article XXIII Holiday payments, plus any Article XXIV Fire Watch Duty payments, during the last twelve (12) consecutive months within the last thirty-six (36) month period prior to the filing of said application for retirement.” willing to make contributions to the plan for the five years in question, and the board refused to consider this offer. This offer, however, was unnecessary because the commission reinstated him with full vested pension rights.

       In addition, the board’s argument that the fire department’s union contract requires an annual contribution to be eligible for pension benefits is unavailing. Although the contract does set forth a formula for what percentage of the salary the contribution will be and how it will be collected, it does not state any position on the consequence of not contributing to the plan. The city of Waterbury charter is silent on the issue of contributions to be made to the pension plan when an employee is receiving disability pension and is then reinstated. The record indicates that the city’s practice, consistent with that of other state retirement and disability policies, has been not to require contributions during a period of disability but to credit such period for purposes of retirement as though contributions had been made.
      Our state legislature also has articulated a policy for awarding credit for the years a state employee is disabled. General Statutes § 5-169 (e) expressly provides that “[rjetirement income being paid for disability retirement shall end when and if the disability ends. In such event, such member shall receive credit for the years he was disabled . . . .” General Statutes § 5-169 (i) provides in relevant part: “If a member qualifies for disability compensation under section 5-142, such member shall continue to be credited with service hereunder, and shall not be deemed to have retired until he elects to retire.
      . . .” Moreover, in 1985, the legislature specifically deleted a provision that required qualified employees to continue to make employee contributions for years of service credit.
      Furthermore, neither the union contract nor the charter makes any provisions for contributions to the pension plan when the employee is receiving disability pay. On September 20, 1995, the board indicated that the reason that it was crediting only the thirty-one years of service was because the plaintiff had not made contributions to the plan from April 11, 1988, to February 17, 1993. On May 29, 1996, the plaintiff indicated that he was

       The trial court in Battaglia stated: “The fact that Mr. Battaglia received only 2 percent more under a disability retirement than he would have received under normal retirement on the same date does not persuade this court that the board’s assessment of his disability pension was arbitrary, clearly erroneous, or an abuse of discretion.”

       Section 2746 of the city charter provides in relevant part: “Any fire or police participant totally and permanently disabled during the performance of essential duties pertaining to his employment by the City of Waterbury, irrespective of the duration of his employment, [shall] be retired for disability, provided proof of total disability is submitted to the retirement board substantiated by reports of examinations to be made by at least two (2) impartial competent medical examiners appointed by the legal department and retirement board. The retirement board shall pay to each regular member employed in the fire or police department who has been retired for disability according to the provisions of this act, this chapter of the compilation, a pension during the continuance of such disability. In the event that the board shall, upon competent medical evidence, conclude that the disability for which the employee is receiving a pension no longer exists, the board shall thereupon order a discontinuance of the pension payable to such employee, but not until such employee has been offered reinstatement in the same or comparable employment. . . .”

       The following colloquy transpired at the board’s meeting concerning the plaintiffs application:
      “Commissioner David Bozzuto: And the disability pension is currently 62 percent [and] is based on his actual years of having worked for the city.
      “Administrator Brustat: That is correct.
      “Commissioner Bozzuto: So, the changes I understand it, that is being requested is to increase his time for the years or the five years that he did not actually work for the city.
      “Administrator Brustat: Correct.
      “Chairman Pasquale A. Mangini: I might also point out commissioner that your observations are correct, the 62 percent was both arrived at and the conclusion based on service retirement and disability retirement. It happened to be 62 percent is the equivalent of the years of service. Isn’t that so?
      “Administrator Brustat: Correct.
      “Chairman Mangini: So that it was a common point arrived at by the board, who was sitting on the board at that time, as an equitable disability retirement. It is my understanding.
      “Commissioner Bozzuto: What year was that?
      “Administrator Brustat: 1995, June 16th.
      “Chairman Mangini: Some of these commissioners were seated at the board at that time, so you are familiar [with] what transpired. Any further discussion on the motion.
      “Mr. Downey: I would like to speak.
      * ** *
      “Chairman Mangini: Go ahead Mr. Downey.
      “Mr. Downey: On the rate of disability, I retired in 1995,1 did not get the rate of disability until 1997 from the doctors. That was not taken into context in the board meeting before, because I was retired before I had the operations. The doctor waited two years with the legs to see what the disability I got.
      “Chairman Mangini: I don’t think Mr. Downey that we are saying the board rated you at 62 percent disabled. I think what we are saying is the board rated your disability payment at 62 percent that equated to the same percentile that would have been arrived at based on your years of service. I am not saying that this board established any medical.
      “Mr. Downey: I misunderstood; what I am trying to say, is that I did not get a disability rating until 1997.
      “Chairman Mangini: But in plain and simple terms, you were given a 62 percent disability and at that time there was thirty-one years of service which would equate to 62 percent service.”

       Article XXXIII, § 11, of the contract provides in relevant part: “The paities hereto agree that, effective as of July 1, 1977, any provision of the Charter to the contrary notwithstanding, an employee who applies for, and receives, a disability pension .... shall be entitled to, and shall receive, a maximum disability pension of seventy-six percent (76%) of annual pay.
      . . .” See also footnote 8.


source: Caselaw Access Project

author: DALY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. LUIS VASQUEZ
    (AC 19885)
    Landau, Zarella and Daly, Js.

      Argued September 28, 2000
    officially released October 9, 2001

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

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Opinion

DALY, J.

The defendant, Luis Vasquez, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a school in violation of General Statutes § 21a-278a (b), sale of narcotics in violation of § 2 la-278 (b), sale of narcotics within 1500 feet of a school in violation of § 21a-278a (b), conspiracy to sell narcotics in violation of General Statutes §§ 53a-48 (a) and 21a-278 (b), and conspiracy to sell narcotics within 1500 feet of a school in violation of §§ 53a-48 (a) and 21a-278a (b).

The defendant claims that the court improperly (1) failed to conclude that the conviction of possession of narcotics with intent to sell within 1500 feet of a school and the sale of narcotics within 1500 feet of a school violated his state and federal constitutional rights to be free of double jeopardy, (2) failed to conclude that the conviction of conspiracy to sell narcotics and conspiracy to sell those narcotics within 1500 feet of a school violated his state and federal constitutional rights to be free of double jeopardy, (3) instructed the jury that to be guilty of the sale of, possession with intent to sell or conspiracy to sell narcotics within 1500 feet of a school in violation of § 21a-278 (b) did not require an intent to sell within 1500 feet of a school and (4) failed to permit him to show that a confidential informant was the actual seller of the narcotics.

The jury reasonably could have found the following facts. On August 12, 1998, at approximately 6:30 p.m., four New Haven police officers, Keith Wortz, A1 Ferraro, Jose Escobar and Pat Helliger, members of the police department’s narcotics enforcement unit, were traveling in an unmarked cruiser on Woolsey Street in New Haven and observed people on the porch of 72 Woolsey Street. The police recognized the defendant in an open first floor window that faced out toward the front porch and the street. The police also recognized Gregorio Santiago, who was standing on the front porch next to the window.

Wortz and Ferraro conducted surveillance nearby while the two other officers took cover in the rear seat of the unmarked cruiser. Wortz and Ferraro observed five separate instances in which individuals walked to the front of the 72 Woolsey Street porch, spoke to Santiago and handed him what appeared to be money. Santiago then went to the front window and passed the money to the defendant, who then handed something back to Santiago, who in turn passed it to the waiting individual. After viewing those transactions, the officers drove to the front of 72 Woolsey Street and exited their vehicle. Escobar went to the rear of the house while the others advanced to the front porch. Helliger detained Santiago while Wortz and Ferraro pursued the defendant. The defendant fled from the first floor room and ran upstairs. Wortz and Ferraro searched the first floor for other suspects and uncovered four white glassine bags that contained a white-brown powder-like substance. They subsequently ascended to the second floor apartment, knocked on the door and were invited in by Robin Roman, who recognized Wortz. The officers entered the apartment, and Wortz arrested the defendant who was seated on the couch. A search of the defendant uncovered nothing. At trial, Roman testified that immediately after the arrest, Wortz knocked on the door of the room occupied by Luis Rivera. She then stated that Rivera opened the door, Wortz entered the room and that she heard them laughing.

I

The defendant claims that the court improperly failed to conclude that his conviction of possession of narcotics with intent to sell within 1500 feet of a school and the sale of narcotics within 1500 feet of a school, both in violation of § 21a-278a (b), violated his state and federal constitutional rights to be free of double jeopardy. The defendant’s claim was not preserved because it was not raised at trial. The defendant, however, argues that his unpreserved claim is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The defendant’s claim fails to satisfy the third condition set forth in Golding because the alleged constitutional violation does not clearly exist and did not clearly deprive him of a fair trial.

“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. It is unnecessary for this court to review all four prongs of Golding because the defendant’s claim will fail if any one of the conditions is not met. See id., 240. Therefore, this court is free to focus on and respond to the condition most relevant to the defendant’s claim. See id.

The defendant’s claim fails to satisfy the third prong of Golding because no double jeopardy violation exists. The defendant’s claim rests on the aspect of double jeopardy that prohibits multiple punishments for conviction of a single offense. “In this context, double jeopardy protection is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. . . . Thus, the determinative question is whether the legislature intended the offenses at issue to be separate. . . . The issue, though essentially constitutional, becomes one of statutory construction.” (Citations omitted; internal quotation marks omitted.) State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995).

“[T]o prevail on his claim, the defendant must show (1) that the charged offenses arose out of the same act or transaction, and (2) that the two convictions are in reality the same offense. Multiple punishments are forbidden only if both conditions are met.” Id. “For the first prong of the analysis of the defendant’s claim, it is necessary to review the information and the bill of particulars.” Id. Because all six counts of the state’s information allege offenses committed on the same date, at the same time and in the same location, we conclude that the charged offenses arose out of the same act or transaction. The first prong of the analysis, therefore, is satisfied.

“With regard to the second prong of the analysis, the defendant must demonstrate that the two convictions are in reality the same offense. The test for determining whether two charged offenses constitute the same offense for double jeopardy was set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). . . . The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . The Blockburger analysis focuses on the statutory elements of the two crimes and the charging documents, and precludes examination of the evidence actually presented at trial. ... If each crime requires proof of a fact that the other does not, the offenses are not the same under Blockburger, notwithstanding a substantial overlap in the proof offered to establish the crimes.” (Citations omitted; internal quotation marks omitted.) State v. Smart, supra, 37 Conn. App. 366.

In Smart, we noted that “[t]he offense of possession of a narcotic substance with intent to sell requires proof that the defendant possessed a narcotic substance. There is no such requirement for the offense of the sale of a narcotic substance. . . . Likewise, the offense of the sale of a narcotic substance requires proof of a sale. There is no such requirement for the offense of possession with intent to sell. . . . Therefore, under Blockburger the two offenses are not the same, nor do they stand in relation of greater and lesser included offenses.” (Citations omitted.) Id., 368; see also State v. Devino, 195 Conn. 70, 75, 485 A.2d 1302 (1985) (possession of cocaine not lesser included offense of crime of sale of cocaine); State v. Brown, 163 Conn. 52, 63, 301 A.2d 547 (1972) (possession of heroin not lesser included offense of crime of sale of heroin).

Similarly, in the present case, the possession of narcotics with the intent to sell within 1500 feet of a school and the sale of those same narcotics within 1500 feet of a school are not the same nor do they stand in relation of greater and lesser included offenses. Although Smart involved a conviction under § 2 la-278 and the conviction at issue in this case is pursuant to § 21a-278a, each offense requires proof of the same additional elements that were required for the conviction in Smart, as previously set forth. Therefore, und er the Blockburger analysis, the defendant’s claim must fail.

We further consider the question of legislative intent. “The Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history. . . . Where there is no clear indication of a contrary legislative intent, however, the Blockburger presumption controls.” (Citation omitted; internal quotation marks omitted.) State v. Smart, supra, 37 Conn. App. 368.

Section 21a-278a (b) does not indicate, on its face, whether the legislature intended to prohibit multiple punishments for conviction of (1) possession of narcotics with intent to sell within 1500 feet of a school and (2) sale of narcotics within 1500 feet of a school. The legislative history of Public Acts 1987, No. 87-341, which included the provisions codified in § 21a-278a, is instructive. In his opening remarks on the bill, Representative William A. Kiner noted that it created “[t]hree new categories of crime,” and described those categories as the groupings ultimately contained in subsections (a), (b) and (c) of § 21a-278a. (Emphasis added.) 30 H.R. Proc., Pt. 24, 1987 Sess., p. 8656, remarks of Representative William A. Kiner. Representative Kiner’s use of the word “categories” manifests an intention that a set of several distinct crimes be encompassed under subsection (b), not just one. We therefore conclude that the legislature intended possession with intent to sell within 1500 feet of a school and sale within 1500 feet of a school to be separate crimes.

Our analysis under Blockburger and review of the legislative history lead us to conclude that the defendant’s claim of a double jeopardy violation is unfounded. Therefore, a clear constitutional violation does not exist, and the defendant’s claim fails the third prong of the Golding analysis.

II

The defendant next claims that the court improperly failed to conclude that the conviction of conspiracy to sell narcotics and conspiracy to sell those same narcotics within 1500 feet of a school violated his state and federal constitutional rights to be free of double jeopardy. Although the defendant concedes that his claim was not properly preserved at trial, he argues that it nonetheless is reviewable under Golding. We agree that his claim is subject to review because it satisfies the first two prongs of Golding in that it raises a constitutional claim that involves a fundamental right, and the record is adequate for review.

The defendant’s claim also satisfies the third prong of Golding because it is clear from the record that a double jeopardy violation exists. “Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . . The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute. . . . For such a violation, only the single penalty prescribed by the statute can be imposed.” (Citations omitted; internal quotation marks omitted.) State v. Kitt, 8 Conn. App. 478, 489, 513 A.2d 731, cert. denied, 202 Conn. 801, 518 A.2d 648 (1986); see also State v. Howard, 221 Conn. 447, 462, 604 A.2d 1294 (1992).

Finally, the defendant’s claim satisfies the fourth prong of the Golding analysis because the state has failed to demonstrate harmlessness of the alleged double jeopardy violation beyond a reasonable doubt. The defendant was convicted of two separate conspiracy offenses and ultimately was penalized for both offenses. In a case such as this, however, “only the single penalty prescribed by the statute can be imposed.” (Internal quotation marks omitted.) State v. Kitt, supra, 8 Conn. App. 489. Thus, the defendant’s dual sentences for the two separate conspiracy convictions were not harmless and cannot stand. On remand, the court is directed to merge the conviction on the two conspiracy offenses and to vacate the sentence for one of them.

Ill

The defendant next claims that the court improperly instructed the jury that to be guilty of the sale of, possession with intent to sell or conspiracy to sell narcotics within 1500 feet of a school in violation of § 21a-278a (b) did not require an actual intent to sell within 1500 feet of a school. Once again, the defendant did not properly preserve this claim at trial and argues that it is subject to Golding review. We agree that the record is adequate for review and that the defendant raises a constitutional claim, thereby satisfying the first two requirements of Golding.

“[A]n improper instruction on an element of an offense ... is of constitutional dimension.” (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 235, 710 A.2d 732 (1998). “It is the duty of the court, in charging the jury in a criminal case, to give to them such instructions as may be required to enable them to understand the nature of the offense charged and the questions which they are to decide, to weigh the evidence applicable to such questions, and to intelligently decide them.” (Internal quotation marks omitted.) State v. Fletcher, 10 Conn. App. 697, 698-99, 525 A.2d 535 (1987), aff'd, 207 Conn. 191, 540 A.2d 370 (1988). “[W]hen it appears, upon an inquiry by the jury, that they have failed to understand a principle of law stated in the charge, it is the duty of the court, upon the request of counsel, to further explain the doctrine in question.” (Internal quotation marks omitted.) Id., 701. “A supplemental charge ... [as involved herein] enjoy[s] special prominence in the minds of the jurors’ because it is fresher in their minds when they resume deliberation.” (Internal quotation marks omitted.) Id., 702. Because the defendant’s claim satisfies the first two prongs of Golding, we now consider the third requirement in the analysis.

We conclude that the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial. “[T]he plain language of § 21a-278a (b) requires as an element of the offense an intent to sell or dispense the narcotics at a location that is within [1500] feet of a school. The state is not, however, required to prove that the defendant knew that this location was within the zone. . . . The mental state of knowledge that the location is within the [1500] foot zone is not set forth in § 21a-278a (b). ... If the legislature had wanted to make knowledge as to location of a school an element of the offense, it would have done so by specifically stating that the defendant possessed the narcotics with the intent to sell or dispense at a location that the defendant knew was in, or on, or within [1500] feet of a school. . . . Thus the plain language of § 21a-278a (b) dictates only one construction. While ‘knowledge’ on the part of the defendant as to location is not an element of § 21a-278a (b), the state is required to prove that the defendant intended to sell or dispense those drags in his or her possession at a specific location, which location happens to be within [1500] feet of an elementary or secondary school.” (Citations omitted.) State v. Denby, 235 Conn. 477, 482-83, 668 A.2d 682 (1995). We therefore conclude that the court’s instructions to the jury were proper.

IV

The defendant claims finally that the court improperly failed to permit him to present evidence showing that the police officer who identified him had lied to protect a confidential informant who was the actual seller of the narcotics.

The following facts and procedural history are necessary to the disposition of the defendant’s claim. Roman was presented as a defense witness and stated outside the jury’s presence that she believed that Rivera was a police informant. The purpose of her testimony was to impeach Wortz’s credibility. The court sustained the state’s objection to such testimony on the grounds of hearsay and relevance.

The defendant claims that an evidentiary ruling by the court impermissibly infringed on his rights under the confrontation clause of the sixth amendment and under the fourteenth amendment to the United States constitution, and article first, § 8, of the constitution of Connecticut. Specifically, the defendant argues that the court improperly prohibited him from introducing impeachment evidence concerning one of the prosecution’s witnesses. In this case, however, Wortz testified at trial, and the defendant had an opportunity to cross-examine him.

“It is well established that [t]he trial court has broad discretion in ruling on the admissibility [and relevancy] of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Vlasak, 52 Conn. App. 310, 315-16, 726 A.2d 648 (1999), appeal dismissed, 252 Conn. 228, 746 A.2d 742 (2000). “Our case law recognizes the right of a defendant to introduce evidence that indicates that another person, not the defendant, committed the crime with which the defendant is charged. . . . The defendant must, however, present evidence that directly connects a third party to the crime with which the defendant has been charged. . . . It is not enough to show that another had the motive to commit the crime . . . nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. . . . The rules of relevancy govern both the initial presentation of third party culpability evidence, and the admissibility of particular evidence in that regard. . . . Whether third party culpability evidence is direct enough to be admissible is ultimately a matter of the discretion of the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Hernandez, 224 Conn. 196, 202, 618 A.2d 494 (1992).

“If the defendant does not specifically request cross-examination on the issue of motive, interest or bias, however, he may waive his right to confront the witness on those issues. . . . This is so because he cannot be heard to complain when he chose not to cross-examine the witness in this respect.” (Citation omitted.) State v. Fullwood, 199 Conn. 281, 286, 507 A.2d 85 (1986).

Here, the defendant was afforded an opportunity to cross-examine Wortz fully and fairly concerning his credibility, but the defendant never raised that issue. A defendant’s right to cross-examine is not infringed if he fails to pursue a line of inquiry open to him. The test is whether the opportunity for cross-examination existed, not whether full use of such opportunity was made. The record does not reflect nor does the defendant claim that the court placed any restrictions on his ability to cross-examine Wortz. Rather, the defendant argues that his confrontation rights were violated when he was not allowed during his defense to raise the issue of Wortz’s possible bias. After a review of the record, we conclude that the court properly exercised its discretion in excluding Roman’s proffered testimony.

The judgment is reversed in part and the case is remanded with direction to merge the conviction on the two conspiracy offenses and to vacate the sentence for one of them. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in relevant part: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any narcotic substance, hallucinogenic substance other than marijuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter ... for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years. . . .”

       General Statutes § 21a-278a (b) provides in relevant part: “Any person who violates section 21a-277 or 21a-278 by manufacturing, distributing, selling, prescribing, dispensing, compounding, transporting with the intent to sell or dispense, possessing with the intent to sell or dispense, offering, giving or administering to another person any controlled substance in or on, or within one thousand five hundred feet of, the real property comprising a public or private elementary or secondary school . . . shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278. . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       At oral argument, the defendant withdrew his claim that the conviction of possession of narcotics with intent to sell and the sale of those narcotics constituted a violation of his constitutional rights to be free of double jeopardy.

       The parties stipulated that 72 Woolsey Street is within 1500 feet of the Columbus Elementary School.

       The first floor was vacant on the day of the defendant’s arrest because the former first floor occupants had moved out of their apartment two days prior to the arrest

       The substance was found in the room from which the defendant had fled, and a field test conducted by Wortz identified the substance to be heroin, which later was confirmed by the state toxicology laboratory.

       The state concedes that the conviction violates the defendant’s rights to be free of double jeopardy. Because we are not bound to accept a party’s concessions on appeal, we will, nonetheless, analyze the issue of whether a double jeopardy violation occurred. See State v. Harris, 60 Conn. App. 436, 443, 759 A.2d 1040, cert. denied, 255 Conn. 907, 762 A.2d 911 (2000).

       See State v. Chicano, 216 Conn. 699, 721-25, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).


author: LAVERY, C.

text:
    STATE OF CONNECTICUT v. MARVIN SALMON
    (AC 20778)
    Lavery, C. X, and Schaller and Spear, Js.

      Argued June 13
    officially released October 9, 2001

      Nicholas P. Cardwell, for the appellant (defendant).

      Nancy L. Chupak, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John F. Fahey, assistant state’s attorney, for the appellee (state).
   Opinion

LAVERY, C.

J. The defendant, Marvin Salmon, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § oSa-Sla. On appeal, the defendant claims that the trial court improperly (1) failed to suppress the pretrial photographic identifications of him that were obtained as a result of impermissibly suggestive procedures and were not reliable under the totality of the circumstances, and (2) denied motions for judgment of acquittal at the close of evidence and upon the verdict of guilty. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the afternoon of October 22, 1994, the victim, Claven Hunt, stood at the end of the driveway at 90 Irving Street talking to another resident of the building. A red Subaru drove up to the victim, and a black man with his hair in dreadlocks exited from the vehicle. The man fired a .38 caliber handgun at the victim. The victim then ran and his assailant pursued him. The assailant fired several more bullets; two bullets hit the victim in the back and three bullets hit a drain spout and the doors to a garage. Soon thereafter, the police found the unconscious victim, who was later pronounced dead at Saint Francis Hospital and Medical Center in Hartford.

The red Subaru left the area of the shooting, and an off-duty Hartford police officer, Matt Rivera, noticed it moving quickly through traffic on Blue Hills Avenue. Rivera heard a dispatch that a vehicle matching the description of the red Subaru had been involved in a shooting. Although Rivera did not pursue the vehicle because he was off duty and driving his own car, he informed the dispatcher that while he was driving on Blue Hills Avenue he had noticed a vehicle matching the description of the red Subaru. In addition, Rivera provided the license plate number of the vehicle. The police determined that the vehicle belonged to the defendant’s mother and found it parked at the defendant’s mother’s address.

The Hartford police picked up the vehicle and brought it to the evidence garage. The police dusted the car for latent fingerprints and found a fingerprint that matched that of the defendant. In addition, the police determined that there were traces of gunshot residue from a .38 caliber bullet in the car.

Subsequently, Detective Keith Knight handled the ' investigation of the shooting. During the course of the investigation, the Hunt family provided Knight with two witnesses to interview, Theodore Owens and Duane Holmes. On the basis of photographic identifications made by those witnesses, Knight was able to obtain an arrest warrant for the defendant, and the defendant was convicted following a jury trial. At trial, the defendant filed a motion to suppress the pretrial identifications made by Owens and Holmes from the photographic arrays. He claimed that the identifications were unnecessarily suggestive and failed to meet the standard of reliability. The court denied the motion to suppress after an evidentiary hearing. The court also denied the defendant’s motions for judgment of acquittal made at the close of evidence and upon the jury’s return of the verdict of guilty. Additional facts will be provided as necessary.

I

The defendant first claims that the court improperly denied his motion to suppress the pretrial photographic identifications made by Owens and Holmes because they were unnecessarily suggestive and not reliable under the totality of the circumstances. The defendant claims that the denial of his motion to suppress the pretrial identifications resulted in the denial of his constitutional right to due process. We disagree.

When a trial court denies a motion to suppress a pretrial identification, the standard of review is well established. “Upon review of a trial court’s denial of a motion to suppress, [t]he court’s conclusions will not be disturbed unless they are legally and logically inconsistent with the facts.” (Internal quotation marks omitted.) State v. Davis, 61 Conn. App. 621, 629, 767 A.2d 137, cert. denied, 255 Conn. 951, 770 A.2d 31 (2001). “[W]e will reverse the trial court’s ruling [on evidence] only where there is abuse of discretion or where an injustice has occurred . . . and we will indulge in every reasonable presumption in favor of the trial court’s ruling. . . . Because the inquiry into whether evidence of pretrial identification should be suppressed contemplates a series of factbound determinations, which a trial court is far better equipped than this court to make, we will not disturb the findings of the trial court as to subordinate facts unless the record reveals clear and manifest error. . . . Because the issue of the reliability of an identification involves the constitutional rights of an accused ... we are obliged to examine the record scrupulously to determine whether the facts found are adequately supported by the evidence and whether the court’s ultimate inference of reliability was reasonable.” (Internal quotation marks omitted.) State v. Bowens, 62 Conn. App. 148, 159-60, 773 A.2d 977, cert. denied, 256 Conn. 907, 772 A.2d 600 (2001).

“[T]he required inquiry is made on an ad hoc basis and is two-pronged: first, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on an examination of the totality of the circumstances. ... To prevail on his claim, the defendant has the burden of showing that the trial court’s determinations of suggestiveness and reliability both were incorrect. . . .

“[Reliability is the linchpin in determining the admissibility of the identification testimony .... To determine whether an identification that resulted from an unnecessarily suggestive procedure is rehable, the corruptive effect of the suggestive procedure is weighed against certain factors, such as the opportunity of the [witness] to view the criminal at the time of the crime . . . the accuracy of [the witness’] prior description of the criminal, the level of certainty demonstrated at the [identification] and the time between the crime and the [identification]. . . .

“[W]e examine the legal question of reliability with exceptionally close scrutiny and defer less than we normally do to the related fact finding of the trial court. . . . Absent a very substantial likelihood of irreparable misidentification, [ w] e are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (Citations omitted; internal quotation marks omitted.) State v. Reid, 254 Conn. 540, 554-56, 757 A.2d 482 (2000).

As a threshold matter, we note that the defendant implies that the circumstances surrounding Owens’ and Holmes’ coming forward as eyewitnesses render the photographic identification unnecessarily suggestive. What makes a photographic identification unnecessarily suggestive, however, is when the police conduct the identification process in a way that emphasizes or suggests the defendant’s photograph. State v. Owens, 38 Conn. App. 801, 811, 663 A.2d 1094, cert. denied, 235 Conn. 912, 665 A.2d 609 (1995). Moreover, as stated previously, the totality of the circumstances surrounding the identification will be examined only if it is determined that the identification process was unnecessarily suggestive. State v. Reid, supra, 254 Conn. 554. We conclude that the identification procedure was not unnecessarily suggestive.

The defendant claims that the array was unnecessarily suggestive because (1) Owens and Holmes knew that a suspect was included in a photographic array, (2) none of the individuals in the photographs had dreadlocks and one of the witnesses identified the shooter as having dreadlocks, (3) Knight did not adequately question the witnesses before he showed them the photographs, (4) Knight limited the number of photographs for the witnesses to eight and (5) Knight added to the witnesses’ statements because he was motivated to arrest the defendant. We will address each of these arguments in turn.

The defendant first argues that the photographic identification procedure was unnecessarily suggestive because Owens and Holmes knew that the suspect’s picture was contained in the array. The following additional facts are necessary for our resolution of this claim.

On May 2,1996, Knight met with Owens at the Osborn Correctional Facility. That day, Knight took a witness statement from Owens and showed him an array of eight photographs. Owens chose the defendant’s photograph from the array. Knight testified that he did not tell Owens that he needed to pick someone from the array. On June 11, 1996, one of the brothers of the victim brought Holmes to a Hartford police station. Holmes met with Knight and identified the photograph of the defendant from an array of eight photographs. Knight testified that he did not suggest a photograph for Holmes to pick.

In State v. Owens, supra, 38 Conn. App. 811, this court stated that “[e]ven if a court finds that the police expressly informed witnesses that the defendant would be in the array, our courts have found the identification procedure unnecessarily suggestive only when other factors exist that otherwise emphasize the defendant’s photograph.” Moreover, our Supreme Court has stated explicitly that “little harm is likely to arise where the witness, even without the police comment, would have inferred that the occasion for his being requested to identify someone is that the police have a particular person in mind who has been included among those to be viewed.” State v. Austin, 195 Conn. 496, 500, 488 A.2d 1250 (1985). “When presented with a photographic array by the police, [witnesses] reasonably can surmise that the police may .consider one of the persons in the array to be a suspect in the case.” State v. Reid, supra, 254 Conn. 557.

In the present case, the record supports the finding that Owens and Holmes had no actual knowledge that the defendant’s photograph was in the array and that they merely believed that the suspect would be included in the photographs shown to them. Indeed, when questioned about how he knew that the defendant was included in the photographic array, Owens testified that he knew the defendant was in the array when he saw the defendant’s photograph. Even if the witnesses knew that the defendant’s photograph was going to be included in the array of eight photographs, it would have been admissible in the absence of other factors that otherwise emphasized the defendant’s photograph. We conclude that the trial court reasonably could have found that the witnesses’ belief that one of the pictures included in the photographic array was the defendant did not render the pretrial identification unnecessarily suggestive.

Next, the defendant claims that because none of the individuals in the photographic array had dreadlocks and a witness described the shooter as having dreadlocks, the photographic identification was unnecessarily suggestive. Our cases uniformly and consistently have held that photographs included in an array are not required to conform precisely to the description given by witnesses. See State v. Banks, 59 Conn. App. 112, 119-20, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000). The defendant argues that the array contained only photographs of men without dreadlocks, a physical characteristic that does not conform to the description that the witnesses gave. We fail to see how that factor would cause us to conclude that the procedure was unnecessarily suggestive.

First, the witnesses were able to pick the defendant from the array, notwithstanding that his photograph and the others in the array did not show hair in dreadlocks. Second, had the array contained the defendant’s photograph with dreadlocks while the other photographs contained none, there might be an argument that the defendant would stand out from the others. That, however, is not the case here. Third, the defendant points to no case law to support his argument that his photograph and the others in the array must exactly meet the physical description of the suspect. We see no reason why a suspect cannot be included in a photographic array with photographs of other individuals bearing a description similar to, but not exactly the same as, the descriptions given by witnesses to the crimes. This is especially true where, as here, the most prevalent physical difference between the individuals in the photographs and the witnesses’ descriptions was the presence of a certain hairstyle, which can easily change.

The defendant also argues that Knight inadequately questioned the witnesses prior to showing the photographic array to them. We know of no case that requires that the police question witnesses regarding what they know about a suspect or why they came forward with information about a crime. “Absent constitutional barriers, so long as the witness has identified the defendant with reasonable probability, whether the identification is the result of a photo display, a line-up, a show-up or otherwise, the evidence is admissible. The question, in the final analysis, is one of relevancy.” State v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595 (1981). The defendant’s argument that Knight should have asked Owens and Holmes particular questions goes to the weight to be given that evidence rather than to its admissibility. See State v. Gagnon, 18 Conn. App. 694, 705, 561 A.2d 129, cert. denied, 213 Conn. 805, 567 A.2d 835 (1989). Again, we do not find it necessary to examine the precise circumstances surrounding the photographic identification in the absence of a conclusion that the photographic identification was unnecessarily suggestive.

The defendant next argues that the array was unnecessarily suggestive because it contained only eight photographs. “[T]here is no requirement that a certain number of photographs be shown to a witness.” State v. Watson, 165 Conn. 577, 591, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974); State v. Johnson, 28 Conn. App. 645, 649, 612 A.2d 799, cert. denied, 224 Conn. 901, 615 A.2d 1044 (1992). Our Supreme Court and this court have upheld the validity of arrays containing fewer than eight photographs. See, e.g., State v. White, 229 Conn. 125, 161, 640 A.2d 572 (1994) (six photographs); State v. Fullwood, 193 Conn. 238, 247, 476 A.2d 550 (1984) (seven photographs). We recognize that a relatively small array may enhance the prejudicial effect of any suggestiveness in the array or the identification procedures. See State v. Williamson, 206 Conn. 685, 692-93, 539 A.2d 561 (1988); State v. Austin, supra, 195 Conn. 501 (with numerous photographs, suggestive effect diffused and attenuated). The defendant failed to prove that the array itself was suggestive, i.e., “that the defendant stood out from the array like one giant among a group of Lilliputians.” (Internal quotation marks omitted.) State v. Owens, supra, 38 Conn. App. 808. Knight testified that he showed both Owens and Holmes a photoboard containing eight photographs of similar black males numbered from one to eight. Both witnesses positively identified photograph number four as the man he had observed exit from a red vehicle, chase and then shoot the victim.

The defendant’s final argument is that Knight added to witness statements to make them more credible. We are not persuaded. This assertion relates to the totality of the circumstances and not to the identification procedure itself. In light of our prior conclusion that the procedure was not unnecessarily suggestive, we do not reach the issue of whether the totality of the circumstances rendered the identification otherwise rehable. We, therefore, do not address this portion of the defendant’s claim.

We conclude that nothing in the record indicates that the identification procedure was unnecessarily suggestive. The defendant failed to carry his burden of proving that the identification procedure gave rise to a very substantial likelihood of irreparable misidentification. Because we conclude that the arrays used to identify the defendant were not unnecessarily suggestive, we need not consider whether the identifications were nevertheless reliable.

II

The defendant’s second claim is that the court improperly denied his motions for judgment of acquittal made at the close of evidence and upon the verdict of guilty. Specifically, the defendant contends that (1) the circumstantial evidence was not sufficient to convict him, (2) there were inconsistencies in testimony, and (3) Owens and Holmes were not credible. We affirm the judgment of the trial court.

A defendant is entitled to a judgment of acquittal in three instances: (1) if the manifest injustice was so plain as to justify the suspicion that prejudice, corruption or partiality influenced the jury or some of its members; (2) when the verdict is based on physically impossible conclusions such as when the testimony conflicts with indisputable physical facts or when the facts demonstrate that the testimony is either intentionally or unintentionally untrue testimony and leave no real question of conflict of evidence for the jury concerning whether reasonable minds could differ; and (3) where the jury could not reasonably have concluded, 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. Avcollie, 178 Conn. 450, 457-58, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980), aff'd, 188 Conn. 626, 453 A.2d 418 (1982), cert. denied, 461 U.S. 928, 103 S. Ct. 2088, 77 L. Ed. 2d 299 (1983); State v. Sirimanochanh, 26 Conn. App. 625, 639-40, 602 A.2d 1029 (1992), rev’d on other grounds, 224 Conn. 656, 620 A.2d 761 (1993).

In reviewing the denial of a motion for judgment of acquittal, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether, from all of the evidence and the reasonable inferences drawn therefrom, the jury reasonably could have concluded that the defendant was guilty beyond a reasonable doubt. State v. Watson, 50 Conn. App. 591, 604, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S. Ct. 1373, 143 L. Ed. 2d 532 (1999), petition for cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001).

The defendant first argues that the circumstantial evidence was not sufficient to convict him. We disagree. The probative force of the evidence is not diminished by its circumstantial nature. Id., 604-605. Indeed, deference must be given to the trier of fact, who has had the opportunity to observe the witnesses and to assess their credibility. State v. McCall, 62 Conn. App. 161, 168, 774 A.2d 143 (2001). The “jury can accept all, part or none of the testimony of a witness.” State v. Fullard, 5 Conn. App. 338, 342, 497 A.2d 1041 (1985). “Where there is sufficient evidence to support a reasonable inference that the defendant intended to commit the crime charged, whether such an inference should be drawn is properly a question for the jury to decide.” State v. Morrill, 193 Conn. 602, 609, 478 A.2d 994 (1984).

In the present case, both direct and circumstantial evidence was presented. The state presented evidence that after hearing gunshots and witnessing a red car speed away, a resident of 115 Irving Street contacted the police and provided a license plate number. She also told the police that a black male was driving the vehicle. The defendant’s mother testified that she owned ared Subaru with the same license plate number and that her son used the vehicle. She also testified that she did not use the vehicle on October 22,1994, and that she had left the key for her son. On the afternoon of the murder, Rivera, the off-duty police officer, was cut off by a red car that was moving quickly through traffic in the vicinity of the shooting. He subsequently heard a dispatch that a red car with a similar license plate number was involved in a shooting. He provided the red car’s license plate number to the dispatcher because of the similarity to the one reported. Later that day, he went to the residence of the defendant’s mother and identified the car as the one that had cut him off that afternoon. Robert O’Brien, from the Connecticut state police forensic science laboratory, testified that gunshot residue was found in the red Subaru. Thomas O’Brien from the forensic services division of the department of public safety testified that the defendant’s fingerprints were found in the same red Subaru.

Owens and Holmes testified that they knew the victim. Owens testified that he witnessed the murder from a gas station located across the street from where the victim was shot. Owens also testified that he knew the defendant was Jamaican because he called the victim a “blood clot,” which is a derogatory term used by Jamaicans. Holmes was parked on Irving Street when he saw a red Subaru drive up Irving Street and stop in front of the driveway at 90 Irving Street. He saw the driver, a black male whom he positively identified as the defendant, exit from the vehicle and shoot the victim. In addition, both Owens and Holmes positively identified the red Subaru as the vehicle that they had seen that day on Irving Street and positively identified the defendant from photographic arrays. Another witness, Delroy Coomes, testified that the victim indicated to him that the victim had had a confrontation with a person in a red car. This witness also testified that he was familiar with the red car because the defendant used to visit someone who lived on the third floor of the building at 90 Irving Street. On the basis of the evidence set forth and the inferences reasonably drawn therefrom, we conclude that the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.

The defendant next argues that there were inconsistencies and discrepancies in the testimony. We do not know, on the record before us, the weight that the jury gave to the testimony of the witnesses or of the circumstantial evidence. As we previously discussed, however, “[i]t is the [jury’s] exclusive province ... to determine the credibility of witnesses. . . . The [jury] can . . . decide what — all, none or some — of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Marsala, 44 Conn. App. 84, 96, 688 A.2d 336, cert. denied, 240 Conn. 912, 690 A.2d 400 (1997).

Furthermore, the court fully instructed the jury on the issue of credibility. The court articulated the various inconsistencies in the testimony of Knight, Owens and Holmes. In addition, the defendant had an opportunity to cross-examine fully the witnesses. It is not necessary for us to review the various inconsistencies and contradictions in the evidence as alleged by the defendant. “ ‘Such credibility issues are typical grist for the [trier of fact’s] mill.’ " State v. Castro, 60 Conn. App. 78, 80-81, 758 A.2d 470, cert. denied, 255 Conn. 912, 763 A.2d 1038 (2000). We, therefore, conclude that the jury reasonably could have credited the witnesses’ testimony despite the inconsistencies and discrepancies regarding certain events surrounding the murder.

The defendant’s final claim is that Owens and Holmes were not credible. Specifically, he argues that he is entitled to a judgment of acquittal because it was physically impossible for Owens or Holmes to identify the shooter one and one-half years after the crime was committed. This court has found, however, that a two year time period between a crime and an identification did not render the identification unreliable. See State v. McClendon, 45 Conn. App. 658, 666, 697 A.2d 1143 (1997), aff'd, 248 Conn. 572, 730 A.2d 1107 (1999). Here, Owens and Holmes had ample opportunity to see the shooter, the conditions for identification were favorable in that it was daylight and the incident occurred in their direct line of sight, and both witnesses demonstrated certainty in identifying the defendant from the photographic arrays. We recognize that the identification in McClendon was also by the victim and therefore was face to face. Nevertheless, under the facts of this case we conclude that the defendant was not entitled to a judgment of acquittal on the basis of a physical impossibility.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person

       One court has stated that it is “foolish not to assume” that a victim would believe that at least someone in the array is a suspect. Towles v. United States, 428 A.2d 836, 845 (D.C. 1981).

       Moreover, the degree of specificity of a prior description is a factor for the trier of fact to consider in determining how much weight to assign to such an identification.

       This analysis assumes, arguendo, that the inability to identify someone is an example of a physical impossibility. Most of the cases cited by the parties include an actual physical impossibility, i.e., a brick wall obstructing the line of vision.