text:
    ROBERT H. HALL ET AL. v. KASPER ASSOCIATES, INC.
    (AC 23617)
    Dranginis, Flynn and Bishop, Js.

      Argued November 21, 2003 —
    officially released March 9, 2004

      Roger Lee Crossland, with whom, on the brief, was Daniel Shepro, for the appellant (defendant).

      Jeffrey B. Sienkiewicz, for the appellees (plaintiffs).
   Opinion

FLYNN, J.

The defendant, Kasper Associates, doing business as Kasper-Ryan Associates (Kasper), appeals from the judgment of the trial court declaring a certain mortgage invalid and discharging it pursuant to General Statutes § 49-13 and further awarding damages of $5000 and attorney’s fees in the amount of $2500 together with costs, pursuant to General Statutes § 49-8. We affirm the judgment of the trial court.

The court found the following facts. A mortgage was given by Aaron L. Bernstein and Doris D. Bernstein more than twenty years ago on November 7, 1983, in the face amount of $7000 to the defendant. The mortgage was recorded on November 17, 1983, in volume 317, pages 784-88 of the Newtown land records. Credible evidence was offered to establish satisfaction of the mortgage by Sylvia Bernstein, and no credible evidence was offered to rebut her testimony. On the basis of the testimony of Doris D. Bernstein and Joseph Kasper, Jr., the court further found that it was reasonable to infer that the mortgage was satisfied.

The complaint alleged and the defendant’s answer admitted that the mortgage was due either within two years from its making or upon the transfer of title by the Bernsteins, whichever occurred earlier. The court further found that there was credible testimony from Joseph Kasper, formerly of the defendant, that neither the original mortgage note nor the deed could be found. The plaintiff M & E Land Group (M & E), the owner of the mortgaged property at the initiation of this litigation, and its immediate predecessors in title held an undisturbed possession of the property for more than six years. The court further found that a release of mortgage had been demanded but that the defendant had failed to deliver a release, despite the demand.

The defendant first contests the standing of the plaintiffs, attorney Robert H. Hall and M & E, to bring an action under General Statutes §§ 49-13 and 49-8. As to Hall, the defendant claims that he never purchased or possessed the land to meet the undisturbed six year possession requirement of § 49-13, nor had he made any payment to qualify him for damages as an “aggrieved person” under § 49-8. In the case of M & E, the defendant claims that it had no standing to bring the action initially and no standing to continue the action because M & E did not own the property for at least six years and sold the property before the start of the trial. The defendant further argues that the plaintiffs cannot tack prior possession by other predecessors in title to reach the six year requirement imposed by § 49-13 to bring a mortgage discharge action. The defendant also claims that the court improperly admitted into evidence an affidavit by the Bernsteins’ attorney, who had represented them at the time of the conveyance to M & E. We will address each claim in turn.

We first set forth the standard of review and legal principles that guide our analysis in determining the plaintiffs’ standing. “[B]ecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. ... In order for a party to have standing to invoke the jurisdiction of the court, that party must be aggrieved. Standing is the legal right to set judicial machineiy in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action .... Standing is established by showing that the party claiming it is authorized by statute to bring suit [in other words, statutorily aggrieved] or is classically aggrieved. . . . The fundamental test for determining [classical] aggrievement encompasses a well-settled twofold determination: first, the party claiming aggrievement must successfully demonstrate a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all the members of the community as a whole. Second, the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision.” (Citation omitted; internal quotation marks omitted.) Edgewood Village, Inc. v. Housing Authority, 265 Conn. 280, 288, 828 A.2d 52 (2003).

We first address Hall’s standing. It is not disputed that Hall represented clients Roland Roehrich and Jeanne R. Koon (Roehrich-Koon), who purchased the Bernsteins’ land. When Roehrich-Koon conveyed the land to M & E, the unreleased mortgage to Kasper was discovered, and Hall was required to sign an indemnity agreement with the Connecticut Attorney’s Title Insurance Company (title insurer) that insured over that encumbrance to facilitate the sale to M & E. General Statutes § 49-13 (a) provides that “the person owning the property, or the equity in the property, may bring a petition to the superior court” seeking a judgment that the mortgage is invalid. The defendant urges that this statute must be inteipreted literally and that, because Hall was neither the owner of the property nor the owner of the equity in it, he lacked standing to bring this action. The indemnity agreement in evidence clearly set out Hall’s agreement to indemnify the title insurer from any loss to induce it to certify over the unreleased Kasper mortgage. Practice Book § 9-23 provides in pertinent part that “[a]n action may be brought in all cases in the name of the real party in interest . . . .” We agree with the plaintiff that pursuant to this rule, Hall, as an indemnitor, was authorized to proceed in his own name as a real party in interest and was classically aggrieved. See Wilkinson v.Boats Unlimited, Inc., 236 Conn. 78, 88, 670 A.2d 1296 (1996). The defendant’s refusal to release this mortgage triggered Hall’s contractual obligation to bring a legal action for its discharge. As an indemnitor to the title insurer by virtue of his agreement to hold the title insurer harmless from any financial loss, he had a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, and that interest was specially and injuriously affected by the defendant’s refusal to release the mortgage.

The prayer for relief annexed to the complaint sought relief not just under the provisions of § 49-13, but also under the provisions of § 49-8. The latter statute provides in pertinent part that when a demand for release has been delivered to a mortgagee and no release has been delivered, the mortgagee “shall be liable for damages to any person aggrieved . . . .” General Statutes § 49-8 (c). As a “person aggrieved” under the plain words of the statute, Hall was both statutorily and classically aggrieved.

We conclude that Hall was classically aggrieved under provisions of § 49-13 and was both statutorily and classically aggrieved under § 49-8. Hall demonstrated a specific personal and legal interest in the subject matter of the decision, as distinguished from a general interest, in that he agreed to indemnify the title insurer from loss arising from the unreleased mortgage. Therefore, Hall successfully established that the specific personal and legal interest was specially and injuriously affected. See Edgewood Village, Inc. v. Housing Authority, supra, 265 Conn. 288.

Furthermore, Practice Book § 11-3 provides that the exclusive remedy for misjoinder of a party is a motion to strike. The defendant never moved to strike Hall as an improper party but instead filed an answer and special defense, thereby waiving any claim that Hall was not a proper party to the proceeding. See Thibault v. Frechette, 135 Conn. 170, 172, 62 A.2d 863 (1948).

We next turn to the defendant’s claim that M & E lacked standing because it had sold lots and ceased to be an owner of the property or the equity in the property as required by § 49-13. This argument is without merit. M & E was still a party in interest because of the war-rarities in its deeds to lot purchasers that required it to “protect the land granted from all lawful claims and demands [made] at the time of the grant . . . .” King v. Kilbride, 58 Conn. 109, 116, 19 A. 519 (1889). In the event that the mortgage was not declared invalid by the action brought under § 49-13, M & E would have been required to defend any foreclosure of the Kasper mortgage that was brought against its grantees who had received warranty deeds from M & E.

Finally, the defendant argues that M & E lacked “undisturbed possession” of the real property for at least six years as required by § 49-13. Essentially, the defendant argues that § 49-13 does not permit a party bringing the action to “tack” a prior owner’s possession to the party’s period of possession to accrue the required six years of possession necessary to invalidate a mortgage under the statute.

Our analysis necessarily involves statutory interpretation, and, therefore, our review is plenary. Durso v. Vessichio, 79 Conn. App. 112, 116, 828 A.2d 1280 (2003). “In interpreting statutes, we are guided by well established tenets of statutory construction. [0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Furthermore, [w]e presume that laws are enacted in view of existing relevant statutes . . . and that [statutes are to be interpreted with regard to other relevant statutes because the legislature is presumed to have created a consistent body of law.” (Internal quotation marks omitted.) Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 444, 705 A.2d 1012 (1997).

The defendant cites McKinney v. Coventry, 176 Conn. 613, 410 A.2d 453 (1979), which was decided under a special taxation statute applicable to farmland, for the proposition that tacking is not permitted. McKinney involved a statute that provided for the imposition of a conveyance tax when land classified as farmland was sold within ten years from the time of its initial acquisition or classification, whichever event occurred earlier. Id., 618. The McKinney plaintiffs claimed that the statute was unconstitutionally vague in that it failed to provide a clear direction as to whether tacking was available to exceed the ten year holding period and thereby avoid imposition of the tax. Id., 616. In construing the statute to determine whether it was unconstitutionally vague, the court placed great reliance on language that treated a change in use as a conveyance for imposition of the tax. Id., 621. Our Supreme Court concluded that the legislature did not intend to permit tacking if the mere change of use by an owner who had not conveyed the land would trigger the imposition of the tax. We have no similar language in § 49-13 indicating a legislative intent that tacking is not permissible in calculating a statutory period of six years. The plaintiffs properly point out that § 49-13 (a) (1) (A) expressly authorizes the court to declare a mortgage invalid when “the mortgagor or those owning the mortgagor’s interest therein have been in undisturbed possession of the property for at least six years . . . .” (Emphasis added.) That statute does not require the petitioner to be in personal possession for six years before the action can be brought. Furthermore, subsection (c) of the statute expressly provides that “if no evidence is offered of any payment on account of the debt” within the six year period provided in subsection (a) “the court may render a judgment . . . declaring the mortgage . . . invalid as a lien against the real estate. ...” General Statutes § 49-13 (c). It is the six years of undisturbed possession that is crucial to obtaining relief under § 49-13 (c), not six years of possession by one owner.

The defendant’s interpretation of the statute would literally deprive a widow who inherited real estate from her husband of statutory relief until she had owned the land for six years in her own name. In Lesser v. Lesser, 134 Conn. 418, 58 A.2d 512 (1948), our Supreme Court rejected such a view. It concluded that the mortgage in question was invalid under the predecessor statute to § 49-13 even though a widow had held the property for only two years following her husband’s death. Id. It held that “leaving the plaintiff in the possession of property which she might never be able to sell to advantage because of the unenforceable but undischarged mortgage of record does not make sense.” Id., 427-28. We conclude that tacking may be used to fulfill the six year time requirement of § 49-13.

The defendant also claims that the court should not have admitted into evidence an affidavit by Mark Oppenheimer, an attorney who represented the Bern-steins in the sale of their land to Hall’s clients, Roehrich-Koon. In the affidavit, Oppenheimer attested that he had paid the balance of the note secured by the Kasper mortgage as part of his responsibilities as a closing attorney representing the Bernsteins. We note that the court placed no reliance on the Oppenheimer affidavit in its findings. In fact, on the basis of the testimony of Bernstein and Kasper, which the court credited, it concluded that it was reasonable to infer that the mortgage was satisfied. We employ an abuse of discretion standard of review in challenges to evidentiary rulings and will not disturb those rulings on appeal when that discretion has not been abused, nor will we reverse a judgment on the basis of an evidentiary ruling unless that ruling was harmful. Lusas v. St. Patrick’s Roman Catholic Church Corp., 125 Conn. 206, 209, 4 A.2d 333 (1939). There is no indication that the court placed any reliance on this evidence, and, thus, there is no showing of harm to the defendant. We therefore reject this claim.

We need not address the defendant’s claim that there was insufficient evidence for the court’s finding that the mortgage loan had been paid. The court found that M & E, and its immediate predecessors in title, held undisturbed possession of the property for more than six years after the expiration of the time limited in the mortgage for full performance of the conditions thereof and prior to commencement of this action. The court also credited Kasper’s testimony that there was no original mortgage note or deed in his possession or in the possession of either corporate entity. No evidence of the mortgage could be found, and no action was taken in furtherance of the mortgage until this case arose. On the basis of these findings, the court ordered the mortgage discharged pursuant to § 49-13. Therefore, this finding supports the discharge of the mortgage, and we need not address the sufficiency claim as to the payment of the mortgage loan, which is an alternate statutory ground for discharge.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Robert H. Hall and M & E Land Group.

       By virtue of a similar failure by the defendant to file a motion to strike against M & E, we conclude that the claim of misjoinder also is waived as to M & E.


source: Caselaw Access Project

author: FOTI, J.

license: Public Domain

text:
    ROBERT ROBELLE-PYKE v. ALEXA ROBELLE-PYKE
    (AC 23848)
    Foti, Schaller and West, Js.

      Argued January 16 —
    officially released March 9, 2004

      David P. Burke, for the appellant (defendant).

      William R. Donaldson, with whom was Christopher P. Norris, for the appellee (plaintiff).
   Opinion

FOTI, J.

In this appeal from the judgment of dissolution of the parties’ marriage, the defendant, Alexa Robelle-Pyke, claims that the trial court improperly (1) denied her motions for a continuance to allow her treating psychiatrist to testify at trial regarding claimed severe depression, (2) ruled on her application for a guardian ad litem to protect her interests, (3) denied her motion for a continuance to secure evidence relative to the present value of the plaintiffs pension and (4) entered financial orders. We agree with the defendant’s first claim and, therefore, reverse the judgment of the trial court.

The record discloses the following relevant facts and procedural history. The action was commenced on May 21, 2001. On August 27, 2002, a case management agreement was submitted stating that the matter would be limited contested. On December 23, 2002, counsel for the defendant received notice that the matter had been assigned for trial on January 2, 2003. A motion for a continuance, filed by the defendant on December 24, 2002, was denied by the court, Bozzuto, <■/., on the same day. The motion noted that (1) the defendant had been diagnosed as suffering from major depression, (2) Elizabeth Taylor, a board certified psychiatrist and the defendant’s treating psychiatrist, would be testifying as to the defendant’s mental health at trial, (3) Taylor, who practices psychiatry in Indiana, had left the country on vacation and was due to return on January 7, 2003, (4) counsel, because of the defendant’s mental condition, would find it difficult to prepare for trial on the issue of mental health and (5) the motion for the appointment of a guardian ad litem for the defendant was pending, but unresolved.

On January 2, 2003, the defendant renewed her motion for a continuance, setting forth the identical reasons as in her written motion and noting that her mental health was a criterion that the court was statutorily obligated to consider. In pursuing the motions for a continuance and for the appointment of a guardian ad litem, the defendant read excerpts from a video deposition of Taylor.* *

The court, White, J., denied the motion for a continuance and the motion for the appointment of a guardian ad litem, concluding that no persuasive evidence had been presented that the defendant was not competent.

Following the plaintiffs testimony, the defendant took the witness stand and acknowledged that (1) she was taking four medications, Remeron, Zyprexa, Klo-nopin and Xanax, (2) they were prescribed by Taylor, (3) she did not know whether they would affect her ability to testify, and (4) they did affect her memory and ability to focus. Following the defendant’s completed testimony, the offer was made to submit a transcript of Taylor’s video deposition, together with medical records. Following the submission, the defendant sought a continuance to update Taylor’s evaluation, which was about six months old. The request was denied.

The transcript reveals that the court found that “[t]he [defendant] is suffering from clinical depression. She’s under treatment. She’s willing to get better and making efforts to do so and is able to manage her daily affairs. In fact, [the court found], from her testimony, on the stand, that she — her thought process is organized and she seems to be oriented as to time, and she seems to understand the responsibility she has. And she’s employed currently as a cashier at a Barnes and Noble in the state of Indiana.”

“At the outset, we note our standard of review. A trial court holds broad discretion in granting or denying a motion for a continuance. Appellate review of a trial court’s denial of a motion for a continuance is governed by an abuse of discretion standard that, although not unreviewable, affords the trial court broad discretion in matters of continuances. ... An abuse of discretion must be proven by the appellant by showing that the denial of the continuance was unreasonable or arbitrary.” (Internal quotation marks omitted.) Marshall v. Marshall, 71 Conn. App. 565, 574, 803 A.2d 919, cert. denied, 261 Conn. 941, 808 A.2d 1132 (2002).

A party’s health is one of the statutory criteria that must be considered in the court’s exercise of its broad discretion in awarding alimony; General Statutes § 46b-82; and distribution of assets; General Statutes § 46b-81. “Once the defendant put[s] her health in issue, it [is] incumbent on her to offer pertinent evidence to support her position.” Tevolini v. Tevolini, 66 Conn. App. 16, 27, 783 A.2d 1157 (2001).

The record clearly reflects that the defendant’s chronic and severe depression disorder was an issue and that the plaintiff was aware of it, 6 and also that the matter had not previously been scheduled for trial. There is nothing in the record to reflect that any prejudice would have occurred if a continuance had been granted to allow Taylor time to return from vacation and appear to testify. Under the particular circumstances of this case, the defendant requested a continuance to provide the court with what she claimed was essential medical testimony crucial to an evaluation of her health, which also necessarily implicated her employability, and may have been “pertinent evidence to support her position”; id.; regarding her health. A party should be entitled to present evidence relevant to an issue to be determined by the court; the court is free to give whatever weight it deems proper to that evidence. Under those circumstances, it was an abuse of discretion for the court to have denied the defendant’s requests for a continuance.

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

In this opinion the other judges concurred.

      A previous case management agreement, filed on January 4, 2002, stated that the matter was to be ready for the uncontested trial list.

       The motion was filed on behalf of the defendant on October 10, 2002, and stated in relevant part: “Defendant, Alexa B. Robelle Pyke, pursuant to Section 45a-132 of the Connecticut General Statutes, moves for the appointment of a guardian ad litem to protect her interests with respect to this matter, and, as grounds [therefor], represents as follows:
      “1. On June 6, 2002, Defendant was diagnosed as suffering from ‘Major depression, severe and chronic’ by Elizabeth Taylor, M.D. In rendering this diagnosis, Dr. Taylor utilized the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
      “2. Dr. Taylor is a psychiatrist licensed to practice in the State of Indiana, and certified in Psychiatry/Neurology by the American Board of Psychiatry/ Neurology. Defendant has been treating with Dr. Taylor since June 6th in Evansville, Indiana, where Defendant now resides and where Dr. Taylor’s practice is located. A copy of Dr. Taylor’s June 6, 2002 note is attached hereto as Exhibit A.
      “3. On July 29, 2002, Dr. Taylor was deposed in this matter. On that occasion, she testified to her ongoing evaluation, care and treatment of Defendant. Dr. Taylor said that when she had seen Defendant on July 11th, she was ‘just barely functioning from day to day. She is still very hopeless and helpless and feels very worthless, and I just don’t think that she feels competent to do, you know, even minimal things.’ July 29, 2002 deposition of Elizabeth Taylor, M.D., at 36. A copy of the transcript of this testimony is attached hereto as Exhibit B. When asked if defendant would have been able to travel to Connecticut for a [pendente] lite alimony hearing in this matter, Dr. Taylor testified that Defendant would not have been able to travel to Connecticut or participate in the hearing. Id., at 37. By way of explanation for Defendant’s mental incapacities, Dr. Taylor described the chemical imbalances that occur in the neurotransmitters of the brain of a person suffering from major depression, and how those chemical imbalances effect, inter alia, ‘energy, thought processes, ability to make [decisions . . . .’ Id., at 19].
      “4. At her July 29th deposition, Dr. Taylor was also asked the following questions and provided the following answers:
      “Q. At this point, Doctor, based on the history and your evaluation of Alexa, do you have an opinion as to her condition to a reasonable degree of medical certainty in terms of a diagnosis?
      “A. I would — I would agree with my initial diagnosis that she still suffers from major depressive disorders, severe and chronic. I think it’s very resistant to treatment. That could be due to multiple factors that would be determined in the future.
      “What her prognosis is other than guarded at this time, I can’t really say because I haven’t seen her that long and, as far as her response to medication, it’s been very slow to this point.
      “Q. Do you have any sense of when you will be able to develop a prognosis for her?
      “A. More than that. Hopefully, after I see her a couple more times. The problem is then when improvement is this slow over the month and a half that I’ve been seeing her, then it takes longer to see what the end point might be.
      “Q. Okay. At this point, do you have any opinion as to whether or not she is capable of attending to her own affairs?
      “A. I think minimally. I think she — she is to the point where she is functioning on a day-to-day basis. I think she — she—I think she does take care of her basic finances. But I think her functioning is pretty minimal at this point.
      “Q. Do you have an opinion as to whether or not she is capable of forming meaningful plans with respect to her future?
      “A. At the last date that I saw her, definitely not. Hopefully, in the future with the new medications, there is some hope for that, but—
      “Q. But at this—
      “A. — at this point, I can’t — no, she didn’t. She doesn’t have that ability.
      “Q. All right. Do you have an opinion to a reasonable degree of medical probability as to whether or not she is capable of making decisions regarding the process of this divorce case?
      “A. I would say that would be very minimal at this point. Dr. Taylor transcript, at 45-47. A copy of the transcript of these pages is attached hereto as Exhibit B. “5. On September 12, 2002, the undersigned spoke -with Dr. Taylor to inquire about Defendant’s present condition. Dr. Taylor informed the undersigned that, although she thought that Defendant was improving, she did not presently believe that Defendant was capable of meaningful participation in this matter. She said that she was to see Defendant again on September 19th at which time should would reassess the situation.
      “6. On September 20th, the undersigned again spoke with Dr. Taylor regarding the September 19th visit with Defendant. Dr. Taylor said that Defendant sobbed through the entire session. Dr. Taylor asked if defendant would have had to have participated in the Special Masters’ Conference that had been scheduled for September 20th. When I said that she would have been required to participate if it had gone forward, Dr. Taylor said that there was ‘no way that Alexa could even get from Indiana to Connecticut.’ She said that she could not have participated in any meaningful way. Dr. Taylor also stated that, when the subject of the divorce comes up in session, Defendant repeatedly states that she does not know what to do about the divorce.
      “7. Based on the foregoing, Defendant does not have the ability to presently communicate in any meaningful and knowing way with the undersigned with respect to the resolution of this case, nor is it likely that Defendant will be able to meaningfully participate in this matter any time in the near future. ”

       The excerpts presented, inter alia, showed Taylor’s testimony as to the defendant’s condition:
      “[The Witness]: I think she’s just barely functioning day to day. She’s just out of the suicidal range. She is still very hopeless and helpless and feels very worthless, and I don’t think she feels competent to — to do, you know, even minimal things.
      “[The Defendant’s Counsel]: At this point, doctor, based on the history and your evaluation of [the defendant], do you have an opinion to a reasonable degree of medical certainty in terms of diagnosis?
      * * *
      “[The Witness]: I would. I would agree with the initial diagnosis that she suffers from major depressive disorders, severe and chronic. I think it’s very resistant to treatment that could be due to multiple factors that would be determined in the future. What her prognosis is other than [guarded] at this time, I really can’t say because I haven’t seen her . . . that long. And as far as her response to medication, it has been very slow to this point.
      “[The Defendant’s Counsel]: At this point, do you have an opinion as to whether or not she’s capable of attending to her own affairs?
      “[The Witness]: I think minimally. I think she is ... to the point where she is functioning on a day-to-day basis. I think she . . . does take care of her basic finances, but I think her functioning is pretty minimal at this point.
      “[The Defendant’s Counsel]: Do you have an opinion as to whether or not she is capable of forming meaningful plans with respect to her future?
      “[The Witness]: At the last date I saw her, definitely not. Hopefully, in the future, with new medications, there is some hope for that. But at this point, I can’t — no, she didn’t. She doesn’t have that ability.
      “[The Defendant’s Counsel]: Do you have an opinion with a reasonable degree of medical probability as to whether or not she is capable of making decisions regarding the process of this divorce case?
      “[The Witness]: I would say that would be very minimal at this point.”

       The record does not contain a written memorandum of decision or a signed transcript. The transcript, however, adequately reveals the basis of the court’s decision for purposes of our review.

        On October 4, 2002, the plaintiff filed a motion for physical and mental examination, pendente lite, seeking an order to compel the defendant to submit to appropriate examinations, as “the [defendant places her mental capacity in question by the presentation of statements of her current psychiatrist obtained during a deposition.”

       The record does not reflect that the matter had been subjected to a judicial pretrial or been through the masters conference process.

       Because we have concluded that it was an abuse of discretion to deny the continuance, it is unnecessary to address the defendant’s remaining claims.


author: WEST, J.

text:
    STATE OF CONNECTICUT v. SHAWN BOULIER
    (AC 23300)
    Schaller, West and Hennessy, Js.

      Argued October 29, 2003 —
    officially released March 9, 2004

      David V. DeRosa, special public defender, for the appellant (defendant).

      Rita M. Shair, senior assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and, on the brief, Vicki Melchiorre, senior assistant state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Shawn Boulier, appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), interfering with an officer in violation of General Statutes § 53a-167a and carrying a dangerous weapon in violation of General Statutes § 53-206. The defendant was advised by the state prior to jury selection that the state would seek a sentence enhancement, pursuant to General Statutes § 53-202k, if he was convicted of a class A, B or C felony. On appeal, the defendant claims that (1) this court should create a presumption of prosecutorial vindictiveness when the state seeks a sentence enhancement pursuant to § 53-202k after the defendant elects to have a jury trial or, in the alternative, on the basis of the facts of this case, this court should find actual vindictiveness, (2) his constitutional right to be informed of the nature and cause of the charges against him was violated, and (3) he was deprived of his constitutional right to a jury trial. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On May 5, 2001, the defendant entered a convenience store in East Hartford. He pointed a gun at the owner of the store and demanded that he open the cash register. The defendant took all the money from the register and left the store. The next morning, the defendant returned to the store. The owner offered him coffee and, when he left the room, immediately called the police. When the defendant heard police sirens, he ran away. He was chased by five officers, who eventually, with the assistance of a police dog and pepper spray, forced the defendant to surrender while he attempted to hide beneath a car.

The defendant was charged with robbery in the first degree, interfering with an officer and carrying a dangerous weapon. The court offered the defendant a plea bargain of twelve years in prison, execution suspended after four years, with five years probation. The defendant rejected the offer and elected to have a jury trial. On April 2, 2002, the defendant was notified that the state would seek a sentence enhancement pursuant to § 53-202k if he was convicted of a class A, B or C felony.

On April 5, 2002, the defendant’s trial began. During cross-examination, the defendant answered the prosecutor’s questions, stating that he had gone to the store on the date in question, had a gun with him, knew it had bullets in it, pointed it at the store owner, took money from the cash register, used the money to buy drugs, went back to the store the next day with the gun, ran away when he heard sirens, ran from the police, ignored their orders to stop, was not under the influence of narcotics at that time, was arrested and advised of his constitutional rights and gave a statement to the police admitting his involvement in the crime.

The jury found the defendant guilty as charged of the crimes of robbeiy in the first degree, interfering with an officer and carrying a dangerous weapon. Because the state sought a sentence enhancement pursuant to § 53-202k, the court issued a written interrogatory to the jury, which asked whether it had unanimously found, beyond a reasonable doubt, that during the commission of the crime of robbery in the first degree, the defendant had displayed a firearm. The jury answered in the affirmative. The defendant received an eighteen year sentence, including a five year mandatory sentence pursuant to General Statutes § SSa-SSa/afive year mandatory sentence pursuant to § 53-202k and eight years special parole. The defendant now appeals.

I

The defendant first proposes that when the state seeks a sentence enhancement pursuant to § 53-202k after the defendant elects to have a jury trial, without stating its reasons for doing so on the record, we should presume prosecutorial vindictiveness. In the alternative, the defendant claims that on the basis of the facts of this case, this court should conclude that there was actual vindictiveness on the part of the state. Although the claim was not preserved at trial, we review it pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), because we find the record adequate for such review and the claim to be of constitutional magnitude.

In light of United, States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982), we decline to adopt the bright line rule proposed by the defendant. In that case, the defendant was charged with several misdemeanor and petty offenses. Although the defendant initiated plea negotiations with the government, he later decided that he did not want to plead guilty and elected to have a jury trial. Id., 371. The government subsequently filed additional charges, including one felony count and three other related counts resulting from the same incident. Id. On appeal, the United States Supreme Court held that a presumption of prosecutorial vindictiveness was not warranted. The court rationalized that “[a] prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution.” Id., 382. “[T]he mere fact that a defendant refuses to plead guilty and forces the government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified.” Id., 382-83. “[A] mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule. . . . [T]he Due Process Clause is not offended by all possibilities of increased punishment . . . but only by those that pose a realistic likelihood of vindictiveness. . . . The possibility that a prosecutor would respond to a defendant’s pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness certainly is not warranted.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 384.

The defendant has failed to convince this court that the facts of his case fall anywhere but squarely within the borders of Goodwin. Although the defendant argues that the facts of his case demonstrate vindictiveness because the state sought to impose an additional penalty rather than a more serious charge, we disagree. We decline the opportunity to distinguish an additional felony charge from a sentence enhancement for purposes of a bright line test for vindictiveness.

If the defendant is to succeed “where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.” Wasman v. United States, 468 U.S. 559, 569, 104 S. Ct. 3217, 82 L. Ed. 2d 424 (1984); Connelly v. Commissioner of Correction, 258 Conn. 374, 384, 780 A.2d 890 (2001). The defendant argues that because the sentence enhancement is a legislatively mandated increase in the penalty he will face at sentencing rather than just an additional charge that the state will have to prove, and because there was nothing that the state learned after the unsuccessful plea bargaining to justify the additional term of incarceration under the sentence enhancement statute, a conclusion of actual vindictiveness is warranted in this case. We disagree in light of the fact that “under [Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604 (1978)], a prosecutor engaged in plea negotiations with the defendant lawfully may file additional charges and seek a greater sentence if the defendant does not accept the state’s offer.” (Emphasis added.) State v. Revelo, 256 Conn. 494, 514, 775 A.2d 260, cert. denied, 534 U.S. 1052, 122 S. Ct. 639, 151 L. Ed. 2d 558 (2001). Accordingly, there is no basis to conclude that the state acted with actual vindictiveness toward the defendant. The defendant’s claim fails to satisfy the third prong of Golding because the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

II

The defendant next alleges a violation of his sixth amendment right to be informed of the nature and cause of the accusations against him because he was not informed until the first day of jury selection that the state would seek a sentence enhancement if he was convicted of a class A, B or C felony. Although the claim was not preserved at trial, we review it pursuant to State v. Golding, supra, 213 Conn. 239-40, because we find the record adequate for such review and the claim to be of constitutional magnitude.

“[T]he sixth amendment to the United States constitution . . . guarantee [s] a criminal defendant the right to be informed of the nature of the charge against him with sufficient precision to enable him to prepare his defense and to a,void prejudicial surprise, and ... to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense . . . .” (Emphasis added; internal quotation marks omitted.) State v. Wilson, 71 Conn. App. 110, 115, 800 A.2d 653, cert. denied, 262 Conn. 905, 810 A.2d 272 (2002).

In this case, the defendant was informed adequately of the nature and cause of the charges against him. In his brief to this court, the defendant conceded that the state was required to prove only the same essential facts to secure a sentence enhancement as it was required to prove to secure a conviction for robbery in the first degree. Because the defendant was aware of the robbery charge, he was able to prepare intelligently to defend himself on each of the essential elements of both that charge and the potential sentence enhancement. As such, the defendant was not faced with any prejudicial surprise by not being informed of the state’s intent to seek a sentence enhancement until the first day of jury selection. That rationale is supported by the fact that when given notice of the state’s intent to seek a sentence enhancement, the defendant did not seek a continuance of his trial. We conclude that his claim fails under the third prong of Golding because the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial.

In the alternative, the defendant argues that even if his constitutional right to notice was not violated, the state violated Practice Book §§ 36-11 and 37-10 as well as his common-law rights by informing him three days before trial that it would seek a sentence enhancement. We do not address that argument because it is not of constitutional magnitude and therefore fails to satisfy the second prong of Golding. Although the defendant requests plain error review of his claim, we conclude that such review is not warranted on that issue.* ***

Ill

The defendant next claims that his sixth amendment right to a jury trial was violated. Although that claim was not preserved at trial, we review it pursuant to State v. Golding, supra, 213 Conn. 239-40, because we find the record adequate for such review and the claim to be of constitutional magnitude.

A

The defendant first argues that he was deprived of his right to a jury trial because the court did not notify the jury of the state’s intention to seek a sentence enhancement and did not explain to the jury that its findings could result in a sentence enhancement. We disagree.

The defendant elected to have a jury trial and, indeed, his election was honored. The jury, rather than the court, made findings of fact with regard to both elements of § 53-202k, namely, (1) the jury found the defendant guilty of robbery in the first degree, a class B felony, and (2) the jury found that the defendant had displayed a firearm during the commission of that felony. Although it is the jury rather than the court that is required to find the facts pertaining to a violation of § 53-202k; State v. Rivera, 74 Conn. App. 129, 153, 810 A.2d 824 (2002); neither this court nor our Supreme Court has ever held, nor do we hold now, that a defendant has a constitutional right to have the jury be informed of the consequences of its finding. The fact that the state sought to enhance the defendant’s sentence is one that properly played no role in the jury’s findings of fact regarding the two essential elements of § 53-202k.

B

The defendant next argues that he was denied his right to a jury trial because the jury did not make the decision as to whether his sentence should be enhanced.

It is the court rather than the juiy that the legislature has designated to impose sentences on criminal defendants. See General Statutes § 54-92. We are not authorized to transfer the sentencing power to the jury.

C

Finally, the defendant argues that he was deprived of his right to a jury trial because sentence enhancement pursuant to § 53-202k should have been treated as an “essential element” of the statute and, accordingly, the state should have been required to prove to the jury, in addition to the other two elements of that statute, that the length of his incarceration should have been increased.

“The term element means any fact that the legislature has deemed essential to the commission of the crime.” (Emphasis added; internal quotation marks omitted.) State v. McColl, 74 Conn. App. 545, 570, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003). It is not for this court to add additional elements to the General Statutes enacted by the legislature. The state proved to the jury beyond a reasonable doubt that the two elements of § 53-202k were satisfied and, as such, its burden of proof was satisfied. Accordingly, the defendant has failed to convince this court that he was deprived of his constitutional right to a jury trial. Because the alleged constitutional violation does not clearly exist and did not clearly deprive the defendant of a fair trial, we conclude that he has failed to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-35a requires that the mandatory sentence for a conviction under General Statutes § 53a-134 (a) (2) shall be not less than five years nor more than twenty years imprisonment.

       General Statutes § 53-202k provides: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3, except an assault weapon, as defined in section 53-202a, shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       Pursuant to State v. Golding, supra, 213 Conn. 239-40, “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. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Emphasis in original.)

       The defendant also claims to have suffered a violation of his rights under article first, § 8, of the constitution of Connecticut, which also affords an accused the “right ... to be informed of the nature and cause of the accusation . . . Because the defendant has not provided us with any independent analysis of his state constitutional claim, we limit our review to his federal constitutional claim. See State v. Tomlin, 266 Conn. 608, 615 n.5, 835 A.2d 12 (2003).

       “To prevail under the plain error doctrine, the defendant must demonstrate that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice. . . . This doctrine is not implicated and review of the claimed error is not undertaken unless the error is so obvious that it affects the fairness and integrity of and public confidenceinthe judicial proceedings.” (Internal quotation marks omitted.) State v. Hooks, 80 Conn. App. 75, 86, 832 A.2d 690, cert. denied, 267 Conn. 908, 840 A.2d 1171 (2003).

       The defendant also claims to have suffered a violation of his rights under article first, § 8, of the constitution of Connecticut. Because the defendant has not provided us with any independent analysis of his state constitutional claim, we limit our review to his federal constitutional claim. See State v. Tomlin, supra, 266 Conn. 615 n.5.


author: Per Curiam.

text:
    JOHN TIMBERS v. 294 FARMINGTON REALTY COMPANY ET AL.
    (AC 24083)
    Lavery, C. J., McLachlan and Dupont, Js.
    Submitted on briefs January 7 —
    officially released February 10, 2004
   Per Curiam.

The judgment is affirmed.


text:
    STEPHEN WATSON v. MARY JO WATSON
    (AC 23241)
    Flynn, Bishop and Hennessy, Js.
    Argued January 13 —
    officially released February 10, 2004
   Per Curiam.

The judgment is affirmed.


text:
    JACK CANSLER v. COMMISSIONER OF CORRECTION
    (AC 23540)
    Dranginis, Flynn and Bishop, Js.
    Submitted on briefs January 23 —
    officially released February 10, 2004
   Per Curiam.

The judgment is affirmed.


text:
    AMBA REALTY CORPORATION v. KYLE J. KOCHISS ET AL.
    (AC 23876)
    Drangims, Flynn and Bishop, Js.
    Submitted on briefs January 23 —
    officially released February 10, 2004
   Per Curiam.

The judgment is affirmed.


text:
    FREDERICK GUNN v. COMMISSIONER OF CORRECTION
    (AC 23763)
    Dranginis, Flynn and Bishop, Js.
    Submitted on briefs January 23 —
    officially released February 10, 2004
   Per Curiam.

The trial court denied the defendant’s petition for habeas coipus and denied the petitioner’s request for certification to appeal from the trial court’s decision. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason, or that a court could resolve the issues in a different manner, or that the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. DOROTHY PETRUCELLI STATE OF CONNECTICUT v. ARTHUR J. PETRUCELLI, JR.
    (AC 23528)
    (AC 23529)
    Lavery, C. J., and Schaller and McLachlan, Js.
    Argued January 20 —
    officially released February 10, 2004
   Per Curiam.

The judgment is affirmed.


text:
    HOLLY PERRON v. GERARD M. ROBERT
    (AC 23737)
    Foti, West and Hennessy, Js.
    Argued January 21 —
    officially released February 10, 2004
   Per Curiam.

The judgment is affirmed.


text:
    KYLE COLLINS v. COMMISSIONER OF CORRECTION
    (AC 23664)
    Lavery, C. J., and Foti and McLachlan, Js.
    Submitted on briefs January 23 —
    officially released March 2, 2004
   Per Curiam.

The habeas court denied the petition for a writ of habeas corpus and denied the petitioner’s request for certification to appeal to this court. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.


text:
    MARION L. MILLER v. COMMISSIONER OF CORRECTION
    (AC 23726)
    Lavery, C. J., and Foti and McLachlan, Js.
    Submitted on briefs January 23 —
    officially released March 2, 2004
   Per Curiam.

The habeas court denied the petition for a writ of habeas corpus and denied the petitioner’s request for certification to appeal to this court. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. DEAN S. VLAHOS
    (AC 23940)
    Flynn, West and McDonald, Js.
    Argued February 17 —
    officially released March 2, 2004
   Per Curiam.

The judgment is affirmed.


text:
    JOHN BOWMAN v. COMMISSIONER OF CORRECTION
    (AC 23995)
    Schaller, West and DiPentima, Js.
    Submitted on briefs January 23 —
    officially released March 2, 2004
   Per Curiam.

The habeas court denied the petition for a writ of habeas corpus and denied the petitioner’s request for certification to appeal to this court. After a careful review of the record and briefs, we conclude that the petitioner has not demonstrated that the issues are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions are adequate to deserve encouragement to proceed further. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

The appeal is dismissed.


text:
    STATE OF CONNECTICUT v. KEVIN BAILEY
    (AC 23103)
    Lavery, C. X, and West and Cretella, Js.

      Argued September 15, 2003 —
    officially released March 16, 2004

      James B. Streeto, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

WEST, J.

The defendant, Kevin Bailey, appeals from the judgment of conviction, rendered after a jury trial, of possession of marijuana with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), and conspiracy to sell marijuana by a person who is not drug-dependent in violation of General Statutes §§ 53a-48 and 21a-278 (b). On appeal, he claims that the court improperly (1) denied his motion to suppress statements he made to the police, (2) refused to charge the jury that it had to agree unanimously on the manner or method by which the offenses were committed, (3) inadequately responded to the jury’s question concerning the conspiracy charge and (4) misled the jury on the state’s burden of proof beyond a reasonable doubt. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On December 14, 1999, a police narcotics unit executed a search and seizure warrant at the defendant’s residence at 181 College Street in Stratford and found $10,340 in United States currency and $20,000 in Jamaican currency, two loaded handguns and fifteen pounds of marijuana in one pound plastic bags. The defendant was placed under arrest and read his Miranda rights from a printed warning card. He then was taken to police headquarters where he signed and initialed a Miranda waiver form and answered questions regarding his involvement in drug activity.

At trial, the defendant filed a motion to suppress certain statements he made to the police, arguing that he could not read English well enough to understand the Miranda waiver form that he had signed and initialed. The court denied the motion. The jury convicted the defendant and this appeal followed. Additional facts will be set forth as needed.

I

The defendant’s initial claim is that the court improperly denied his motion to suppress statements he had made to the police in the absence of adequate Miranda warnings. He concedes that an attack on the adequacy of the warnings was not raised at trial and therefore asks this court to review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). The defendant argues that prior to police questioning, he was informed only of his general right to the services of an attorney, but not of his right to the presence of an attorney before and during questioning. He contends that the record establishes the absence of those specific rights from both the oral warnings and the Miranda waiver form. The omission of those required warnings, the defendant argues, precludes the possibility that he made a knowing and intelligent waiver of his Miranda rights prior to making statements to police. We disagree.

Under Golding, a defendant can prevail on an unpre-served claim of constitutional error “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.

In this case, the record is inadequate to review the defendant’s claim. With respect to the oral advisement of rights upon the defendant’s arrest, the record does not reveal what specific rights the officer included or omitted. The officer testified that he read the Miranda rights from the printed warning card. That card, however, was never placed into evidence. We do not have enough facts to judge whether, as the defendant argues, the police faded to inform him adequately of his right to counsel in both the oral advisement and the written waiver form. It is not this court’s function to speculate about important facts that were not raised at trial. Because the first Golding condition has not been met, we need not review the claim further.

II

The defendant’s second claim is that the court improperly refused to charge the jury that it had to agree unanimously on the manner or method by which the offenses were committed. He cites his statements that another individual was paying him to store the marijuana in his house and argues that this alternate factual scenario required a specific unanimity instruction. We disagree.

“[A] claim bearing on the defendant’s right to a unanimous verdict implicates a fundamental constitutional right to a fair trial . . . .” (Internal quotation marks omitted.) State v. Tucker, 226 Conn. 618, 645, 629 A.2d 1067 (1993). “Where ... the challenged jury instructions involve a constitutional right, the applicable standard of review is whether there is a reasonable possibility that the jury was misled in reaching its verdict. ... In evaluating the particular charges at issue, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is . . . whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view [them] as improper.” (Internal quotation marks omitted.) State v. Ortiz, 79 Conn. App. 667, 674, 830 A.2d 802, cert. denied, 266 Conn. 933, 837 A.2d 806 (2003).

“[I]f the actions necessary to constitute a violation of one statute or subsection of a statute are distinct from those necessary to constitute a violation of another, then jurors who disagree on which one the state proves cannot be deemed to agree on the . . . conduct the defendant committed. . . . Under such circumstances, the jurors should be told that they must unanimously agree on the same alternative.” (Internal quotation marks omitted.) State v. Mancinone, 15 Conn. App. 251, 273, 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). A specific unanimity instruction is required, however, only “where 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.” Id., 274.

In this case, the defendant was charged, in part, with violation of § 21a-278 (b). In closing argument, the state asserted that the evidence established the defendant’s role in a drug sale operation because he knowingly possessed marijuana with the intent to sell it. The state further argued that although it was unclear what precise role the defendant played in the operation, his purported act of holding the drugs for another was enough to satisfy those elements: “[The defendant] claims he was holding [the marijuana] for somebody named Jimmy from California. ... In that alone he admits to the elements of the crimes right there. Right there alone. Knowing possession of contraband with intent to sell. And why is it the intent to sell? Because he says I’m holding it for somebody, which means I’m going to give it to him, which is again the definition of sale. If I deliver it to somebody, it doesn’t have to be for money. That is sale under our statute.” (Emphasis added.)

The different factual scenarios invoked by the state at trial concerned only one element of § 21a-278 (b), namely, knowing possession of marijuana with the intent to sell. The alternative factual scenarios of the defendant possessing the marijuana himself with the intent to sell it and holding the drugs for a third party in return for compensation constitute “neither alternative statutory subsections nor alternative statutory essential elements” of § 2la-278 (b). Id., 277. Accordingly, a specific unanimity instruction was not required in this case.

We therefore hold that it was not reasonably possible that the absence of a specific unanimity instruction misled the jury.

IH

The defendant’s third claim is that the court inadequately answered the jury’s question on the conspiracy charge. He argues that the court’s response failed to inform the jury that it needed to find that at least one other person entered into an agreement with the defendant to find him guilty of conspiracy. We disagree.

We begin by setting forth the standard of review for claims of improper jury instructions. “When we review jury instructions, we are obligated to view the charge itself in the context of the whole trial. . . . [J]ury instructions are not to be subjected to microscopic examination with an eye toward discovering possible inaccuracies. . . . Rather, the entire charge must be considered from the standpoint of its effect on the jury in guiding [it] to a proper verdict. . . . Jury instructions need not be exhaustive, perfect or technically accurate. ... To pass constitutional muster, jury instructions must be correct in law, adapted to the issues in the case and sufficient to guide the jury in arriving at a verdict.” (Citations omitted; internal quotation marks omitted.) State v. Burgos, 37 Conn. App. 404, 409, 656 A.2d 238, cert. denied, 233 Conn. 915, 659 A.2d 186 (1995).

The defendant failed to preserve his claim at trial and now requests Golding review. See State v. Golding, supra, 213 Conn. 239-40. We will review the defendant’s claim because the record is adequate for review, and he has raised a claim of constitutional magnitude. See State v. Hinton, 227 Conn. 301, 308, 630 A.2d 593 (1993) (following established rule that claimed improper jury instruction on element of charged offense appealable even if not raised at trial). We conclude, however, that the defendant has failed to show that the alleged violation clearly existed and clearly deprived him of a fair trial.

As the defendant concedes, the court gave an adequate charge on the elements of conspiracy. The court stated that “[a] person is guilty of conspiracy when with intent that conduct constituting a crime be performed, he or she 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 a conspiracy. There are, therefore, three elements to this crime: An intent that criminal conduct be performed, two, an agreement with one or more persons to engage in or cause the performance of that conduct and, three, the commission of an overt act . . . .” (Emphasis added.)

The jury then inquired as to whether the defendant could be found guilty of conspiracy without also finding the codefendant, Suzette Royal, guilty. The court responded affirmatively: “The answer to that question is yes. The conspiracy charges read that [the defendant] agreed with Suzette Royal and others unknown. The word ‘with’ leads us to believe that if a conspiracy existed, that Suzette must be included as part of the conspiracy. Is this the case? The answer to that is no.”

We conclude that the court’s instructions and answer, when viewed as a whole, informed the jury that to convict the defendant of conspiracy, it had to find that he had entered into an agreement with at least one other person, not necessarily Royal, to find him guilty of conspiracy.

IV

The defendant’s final claim is that the court improperly instructed the juiy on the state’s burden of proof beyond a reasonable doubt. He argues that the court’s choice of language violated his federal constitutional rights to due process and a fair trial. We disagree.

“A defendant in a criminal case is entitled to a clear and unequivocal charge by the court that his guilt must be proved beyond a reasonable doubt. . . . When reviewing [a] challenged jury instruction ... we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts.” (Internal quotation marks omitted.) State v. Hall, 66 Conn. App. 740, 759, 786 A.2d 466 (2001), cert. denied, 259 Conn. 906, 789 A.2d 996 (2002).

The court charged that a reasonable doubt is “a real doubt, an honest doubt.” Our Supreme Court has approved the use of that language. State v. Hines, 243 Conn. 796, 816, 709 A.2d 522 (1998) (approving language “ ‘reasonable doubt is a real doubt, an honest doubt’ ”).

The defendant also challenges the language, “[a] doubt that has its foundation in the evidence or the lack of evidence in a case.” Our Supreme Court also has approved the use of that language. State v. Taylor, 239 Conn. 481, 504-505, 687 A.2d 489 (1996) (holding that words, “ ‘a doubt which has its foundation in the evidence or lack of evidence’ ” did not unconstitutionally dilute burden of proof), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997).

The court charged the jury, in relevant part, that reasonable doubt “is that kind of doubt that would make a reasonable person hesitate to act. . . . That is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.” That language has been upheld. See State v. Griffin, 253 Conn. 195, 207, 749 A.2d 1192 (2000) (upholding instruction characterizing reasonable doubt as “doubt that would cause reasonably prudent person to ‘hesitate’ to act in matters of importance”).

The defendant also challenges the language, “[a] reasonable doubt is a doubt for which a valid reason can be assigned.” Our Supreme Court has approved that language. See State v. Findlay, 198 Conn. 328, 345-46, 502 A. 2d 921 (upholding instruction as contrasting doubt founded on reason from purely speculative doubt), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986).

Finally, the defendant challenges the charge, “[t]he meaning of reasonable doubt, as I say, is arrived at by emphasizing the word reasonable. It is not a surmise or a guess or conjecture. Ifs and buts play no role. It is such a doubt as in the serious affairs that concern you, you would paid some heed.” Again, it is permissible to define reasonable doubt as a doubt founded on reason instead of on mere speculation. See State v. Derrico, 181 Conn. 151, 171, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

We conclude that none of the challenged instructions, when considered in the broader context of the court’s instructions as a whole, diluted the state’s burden of proof or misled the jury in any way. The defendant’s claim is therefore without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The juiy found the codefendant, Suzette Royal, not guilty of the same offenses.

        Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

       Although the written waiver form was introduced into evidence at trial, the oral advisement is needed to gauge whether the defendant made a knowing and intelligent waiver. Even if we assume, arguendo, that the rights listed on the written waiver form were not complete, the defendant could not argue that such a deficiency, by itself, precludes a viable waiver. “The formal execution of a written waiver is not a prerequisite to a finding that there has been a knowing, intelligent and voluntary waiver by a defendant who has been advised of his rights as required by Miranda.” United States v. Bradford, 496 F. Sup. 366, 372 (D. Conn. 1980).

       Special Agent Donahue Hibbert, of the federal Drug Enforcement Administration testified as follows: “[The defendant] stated to me [that] the marijuana came from an individual in California named Ricky, whose last name is unknown, and Ricky would bring the marijuana to his house, and he would ask him if he could store the marijuana there. He said he did on two, three occasions, and he was paid approximately $300 for having the marijuana stored at his house.”

       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, and who is not at the time of such action a drag-dependent, person, for a first offense shall be imprisoned not less than five years nor more than twenty years . . . (Emphasis added.)

       Although “Jimmy” is the name that appears in the transcript of the state’s closing argument, Special Agent Donahue Hibbert of the federal Drag Enforcement Administration used the name “Ricky” in his testimony concerning the defendant’s statements.

       General Statutes § 2 la-240 (50) defines “sale” as “any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee . . . .”

       See footnote 1.


author: DiPENTIMA, J.

text:
    JEFFREY J. DONTIGNEY v. MARK BROWN ET AL.
    (AC 23629)
    Dranginis, Bishop and DiPentima, Js.

      Argued October 28, 2003 —
    officially released March 16, 2004

      Jeffrey J. Dontigney, pro se, the appellant (plaintiff).

      Linda A. Acampora, with whom, on the brief, was Dale T. White, for the appellees (defendants).
   Opinion

DiPENTIMA, J.

The plaintiff, Jeffrey J. Dontigney, appeals from the judgment of the trial court granting the defendants’ motion to dismiss. The identifiable defendants are Mark Brown and Dave White of the Mohegan Tribe of Indians of Connecticut (tribe). The plaintiff claims that the court improperly denied him the right to proceed to trial on the merits of his case. We disagree and affirm the judgment of the trial court.

The plaintiff brought his action pro se in July, 2002, alleging, inter alia, infliction of emotional distress and defamation, and seeking, inter alia, compensatory and punitive damages, injunctive relief and a declaratory judgment requiring that the defendants recognize him as a member of the tribe. In August, 2002, the defendants, who appeared through counsel, filed a motion to dismiss on the grounds that the court lacked subject matter jurisdiction and that they enjoyed sovereign immunity. The plaintiff filed an objection. On October 7, 2002, the court held a hearing and heard arguments from both the plaintiff and the defendants’ counsel.

On October 8,2002, the court dismissed the plaintiffs action on the ground that it lacked subject matter jurisdiction, under General Statutes § 47-66j (b), to hear the plaintiffs claim for tribal membership. It dismissed the remaining claims on the ground of tribal immunity, citing United States Supreme Court authority. From that judgment, the plaintiff appeals.

The plaintiff argues that because an attempt to comply with § 47-66j (b) would be futile, the court improperly granted the motion to dismiss on that ground. He further argues that the defendants have waived sovereign immunity and, therefore, that the court improperly granted the motion to dismiss on the ground of tribal immunity.

In an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary. “A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts.that appear in the record.” (Internal quotation marks omitted.) Fairfax Properties, Inc. v. Lyons, 72 Conn. App. 426, 431, 806 A.2d 535 (2002).

The trial court’s role in considering a motion to dismiss is to construe the facts alleged in the complaint, including those necessarily implied therefrom, in a manner most favorable to the plaintiff. Miller v. Egan, 265 Conn. 301, 305, 828 A.2d 549 (2003). “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.” (Internal quotation marks omitted.) Brookridge District Assn. v. Planning & Zoning Commission, 259 Conn. 607, 611, 793 A.2d 215 (2002). Further, “[o]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Golden Hill Paugussett Tribe of Indians v. Southbury, 231 Conn. 563, 570, 651 A.2d 1246 (1995). Here, the court found that although the eight page handwritten complaint was “nearly unintelligible,” its main claim was the alleged denial of the plaintiff’s membership in the tribe. The court then noted that the statute on which the plaintiff relied for that claim, § 47-66j (b), was the applicable statute. Because the plaintiff conceded at the hearing before the court that he had not complied with the statute, the court found that it had no jurisdiction to hear the membership claim.

General Statutes § 47-66j (b) provides that membership disputes may be settled by a council and that the council’s decision shall be final on substantive issues. It allows an appeal to the Superior Court on procedural issues. Thus, primary jurisdiction of a tribal membership dispute belongs in a council pursuant to § 47-66j (b). The doctrine of primary jurisdiction applies “where a plaintiff, in the absence of pending administrative proceedings, invokes the original jurisdiction of a court to decide the merits of a controversy.” Sharkey v. Stamford, 196 Conn. 253, 256, 492 A.2d 171 (1985). That doctrine, “like exhaustion, is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency’s findings and conclusions.” (Internal quotation marks omitted.) Id. “[W]here a statute has established a procedure to redress a particular wrong a person must follow the specified remedy and may not institute a proceeding that might have been permissible in the absence of such a statutory procedure.” Stepney, LLC v. Fairfield, 263 Conn. 558, 563, 821 A.2d 725 (2003). A failure to do so deprives the court of subject matter jurisdiction over the controversy. See id. Because the plaintiff failed to follow the procedures set forth in § 47-66j (b), the court properly dismissed the tribal membership claim for lack of subject matter jurisdiction.

As to the plaintiffs argument that any attempt to comply with § 47-66j would be futile, this court is not persuaded. First of all, because the plaintiff did not expressly raise that argument before the trial court, this court is not bound to consider it. Practice Book § 60-5. Even if this court were to consider that claim, however, the law does not provide the plaintiff relief. Under Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 628, 577 A.2d 1017 (1990), futility is an exception to the requirement of statutory compliance if the entity named in the statute lacks the authority to grant the plaintiffs requested relief. Here, the plaintiff claims futility on the basis of the defendants’ alleged bias against him, not on lack of authority to grant him membership.

The defendants argued before the trial court, as well as before this court, that the statute does not apply at all because the tribe is federally recognized and entitled to immunity from suit in Connecticut state courts. This court will not decide the constitutional validity of a statute unless it has been applied in an unconstitutional manner to a party in the case before it. “This principle reflects the conviction that under our constitutional system courts are not roving commissions assigned to pass judgment on the validity of legislative enactments.

. . . We are bound never to anticipate a question of constitutional law in advance of the necessity of deciding it [and] never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. ... A judicial holding that a legislative Act is unconstitutional is one of very grave concern. We ought not, and will not, declare a statute to be unconstitutional unless our judgment is formed in the light of this rule of our law: It is our duty to approach the question with caution, examine it with infinite care, make every presumption and intendment in its favor, and sustain the Act unless its invalidity is, in our judgment, beyond a reasonable doubt.” (Internal quotation marks omitted.) City Recycling, Inc. v. State, 247 Conn. 751, 758, 725 A.2d 937 (1999). The defendants cannot and do not make a claim that the statute has been applied against them in this case unconstitutionally. Accordingly, we decline to decide the validity of § 47-66j (b),

To the extent that the remaining claims reasonably can be construed as against the tribe, they were properly dismissed because of tribal immunity. “[A]s a matter of federal law, an Indian tribe is subject to suit only where Congress has authorized the suit or the tribe has waived its immunity . . . and the tribe itself has consented to suit in a specific forum. . . . Absent a clear and unequivocal waiver by the tribe or congressional abrogation, the doctrine of sovereign immunity bars suits for damages against a tribe. . . . However, such waiver may not be implied, but must be expressed unequivocally.” (Internal quotation marks omitted.) Sevastian v. Sevastian, 73 Conn. App. 605, 608-609, 808 A.2d 1180 (2002). The tribe has not waived its immunity, nor has Congress abrogated that immunity to allow the plaintiffs claims to be heard in this state court action.

The judgment is affirmed.

In this opinion the other judges concurred.

       The state marshal’s return of service indicates service only on “Mark Brown-Mohegan Tribal Chairman with Dave White Chief Legal Counsel for Tribe” at the tribal offices in Uncasville. The caption of the complaint includes the phrase “the tribe, the nation, St of Conn, is defaming & slandering the name Mohegan, my heritage, blood & ancestors lands.”

       The plaintiff raises a number of other claims in his brief, i.e., the alleged failure of the courts, at both the trial and appellate levels, to provide him with counsel and the denial of his request for a change of venue. He also sets forth the merits of his dispute with the defendants, that is, his claim that they and others have denied him his right to his “indigenous heritage.” Primarily because of the procedural posture of this case, we do not address those issues. See Practice Book § 10-33.

       General Statutes § 47-66j (b) provides: “A membership dispute shall be resolved in accordance with tribal usage and practice. Upon request of a party to a dispute, the dispute may be settled by a council. Each party to the dispute shall appoint a member of the council and the parties shall jointly appoint one or two additional members provided the number of members of the council shall be an odd number. If the parties cannot agree on any joint appointment, the Governor shall appoint such member who shall be aperson knowledgeable in Indian affairs. The decision of the council shall be final on substantive issues but an appeal may be taken to the Superior Court to determine if membership rules filed in the office of the Secretary of the State pursuant to this section have been followed. If the court finds that the dispute was not resolved in accordance with the provisions of the written description, it shall remand the matter with instructions to reinstitute proceedings, in accordance with such provisions.”


text:
    HOUSING AUTHORITY OF THE CITY OF HARTFORD v. CHARTER OAK TERRACE/RICE HEIGHTS HEALTH CENTER, INC.
    (AC 23589)
    West, DiPentima and Mihalakos, Js.
    Argued October 21, 2003 —
    officially released March 16, 2004

      Rodger C. Boe, for the appellant (defendant).

      Rudolph P. Arnold, for the appellee (plaintiff).
   Opinion

DiPENTIMA, J.

The defendant, Charter Oak Terrace/ Rice Heights Health Center, Inc. (Charter Oak), appeals from the judgment in a condemnation proceeding involving the taking of a leasehold improvement. Specifically, the defendant claims that the trial court (1) misapplied the rule for calculating leasehold value by deducting from the fair market value of the remaining term of the condemned lease a “rental equivalent payment” that it had paid and (2) improperly calculated the present value of the remaining term of the lease. We agree with the defendant on the first claim, but must remand the matter for further articulation as to the second claim.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. In 1984, the defendant entered into a long-term lease with the plaintiff, the housing authority of the city of Hartford, for the construction of a health center to be operated by the defendant.

Pursuant to the written agreement between the parties, the defendant contributed $210,750, and the plaintiff contributed $215,750. After completion of the building, the defendant moved in, subject to a fifteen year lease with an option to renew for an additional fifteen years, for a total term of thirty years. Under the terms of the lease, the defendant had no obligation to pay rent.

In April, 2000, the plaintiffs board of commissioners approved the acquisition by eminent domain of the defendant’s leasehold interest in the premises. Thereafter, the plaintiff filed a statement of compensation and a deposit in the amount of $250,000 with the clerk of the Superior Court for the taking of the leasehold. Subsequently, the defendant filed an appeal and application for review of the plaintiffs statement of compensation.

After trial, the court rendered judgment in favor of the defendant. The amount of the judgment was $319,525, less the $250,000 deposit previously paid, leaving an excess amount of $69,525 with interest, costs and an appraisal fee. The court denied the defendant’s motion to correct the judgment. This appeal followed. Subsequently, the defendant filed a motion for articulation. The court issued its articulation on December 24, 2002. Thereafter, the defendant filed a motion for review. This court granted review, but denied the relief requested.

I

The defendant first claims that the court improperly applied the rule for calculating leasehold value. Specifically, the defendant argues that the court improperly concluded that its nonamortized contribution to the construction cost in the amount of $210,750 for thirty years, or $7025 per year for 14.25 years, amounting to $100,106, constituted a rental equivalent payment for the term of the lease. We agree.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.” (Citation omitted.) Pan-dolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The rule for establishing the present value of a leasehold is well settled. “The value of the lease is properly arrived at, in the case of a complete taking, by subtracting the rent provided for under the lease from the fair market value of the lease.” Canterbury Realty Co. v. Ives, 153 Conn. 377, 382, 216 A.2d 426 (1966).

The defendant argues that the court improperly concluded that its construction contribution was a rental equivalent payment because, under the terms of the lease, no rent was ever due, and the initial contributions were for the construction of a building only.

The terms of the lease agreement were explicit with regard to the payment of rent. The lease specifically stated that “[t]he [defendant’s] occupancy under this lease shall be without payment of rent to the [plaintiff]. ” (Emphasis added.) Moreover, in its memorandum of decision, the court stated that the defendant’s occupancy was to be without payment of rent. The court then found the nonpayment of rent to be a consequence of the defendant’s “nonrefundable contribution of approximately one-half of the cost of construction of the building to be rented . . . .” The court also found that the defendant had made the construction contribution in lieu of rental payments for the full term of the lease.

The court calculated the rental'equivalent payment by dividing the defendant’s nonamortized construction contribution of $210,750 by the thirty year term of the lease and then multiplying that figure, $7025, by 14.25 years, the remaining term of the lease, to reach a rental equivalent payment of $100,106. The court subtracted the $100,106 from $401,131, its determination of fair market value, to come to the conclusion that the value of the defendant’s leasehold, as of the date of the taking, was $301,025.

After a review of the record, we were unable to find any evidence supporting the conclusion that the construction contribution was intended to be in lieu of monthly rental payments. Furthermore, there was no evidence to support the proposition that the lease’s nonpayment provision was a consequence of the defendant’s nonrefundable contribution of approximately one-half of the construction cost.

As to the initial construction contributions, the lease agreement specifically stated that they were to be used only for the construction of the building. In its memorandum of decision, the court stated that the initial contributions were to be used for the construction of a one story addition. A review of the record disclosed no evidence indicating that any party considered the initial construction contributions rental equivalent payments. To the contrary, there was testimony that the grant was approved for capital construction and that it was a “bricks and mortar” grant.

The court’s conclusion is not supported by the facts set out in the memorandum of decision. Consequently, we conclude that the court improperly determined that the initial construction contribution was a rental equivalent payment and, therefore, that the court improperly deducted the contribution from the fair market value of the leasehold.

II

The defendant next claims that the court improperly calculated the value of the remaining term of the lease as $401,131. Specifically, the defendant argues that after the court adopted the material findings of its appraiser’s valuation of the remaining leasehold term, the court improperly reached a conclusion at odds with that valuation. The defendant does not challenge the court’s findings of fact, but challenges the court’s conclusion, which was based on those subordinate facts. Accordingly, our review is plenary. See Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 181 Conn. 221. We find that further articulation of that issue is warranted and therefore remand the case to the trial court.

After trial, the defendant filed a motion to correct the judgment. The court denied the motion. After the trial court issued an articulation of its findings, the defendant filed a motion for review of the court’s articulation. This court granted review, but denied the relief requested.

“It is the duty of the judge who tried the case to set forth the basis of his decision.” Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981). This court is free to reexamine a decision “sua sponte when plenary review of the case on the merits of the appeal discloses that our earlier decision was ill considered, and that further articulation is necessary for the just determination of the appeal.” State v. Holloway, 22 Conn. App. 265, 276, 577 A.2d 1064, cert. denied, 215 Conn. 819, 576 A.2d 547 (1990). Where the factual or legal basis of a trial court’s decision is unclear, ambiguous, incomplete or the court has failed to state any basis for its decision, this court may remand the case, pursuant to Practice Book § 60-5, for further articulation of the basis of the trial court’s decision. See State v. Wilson, 199 Conn. 417, 434-35, 513 A.2d 620 (1986); State v. Lafferty, 191 Conn. 73, 75-76, 463 A.2d 238 (1983). We find that such a situation presents itself here.

In determining the fair market value of the remaining leasehold term, the court appears to have adopted the facts, figures and methodology of the defendant’s appraiser. The defendant’s appraiser valued the leasehold at $435,347 while the court valued the leasehold at $401,131. In reaching its conclusion, the court offered no meaningful explanation of why its value deviated from that of the defendant’s appraiser.

When asked to articulate its decision, the court first restated the factual elements underlying the valuation by the defendant’s appraiser. Next, the court cleaved the $401,130.50 into two separate figures. The first, $11,405.50, represented the value of the leasehold from November 9, 2000, through February 18, 2001. The second figure, $389,725, represented the value of the leasehold from February 19,2001, through February 18,2014. The difficulty with that analysis is that the $401,130.50 is the disputed figure, and simply breaking down the disputed figure into two arbitrary figures provides this court with no additional insight as to how the trial court concluded originally that the present value of the leasehold was $401,130.50. Because there is no discussion of how the court calculated either of those two figures, it remains unclear to this court how the trial court reached its ultimate valuation of the leasehold. As we have indicated, the appellate record concerning the matter is such that that issue is not amenable to meaningful appellate review.

The case is remanded with direction to articulate the basis of the court’s valuation of the leasehold. We retain jurisdiction over this appeal.

In this opinion the other judges concurred.

       In response, the plaintiff, the housing authority of the city of Hartford, claims that the court improperly failed to determine just compensation based on the defendant’s proof of loss and principles of equity. To the extent that the plaintiff raises issues that attack the judgment, we decline to address the issues because the plaintiff failed to file a cross appeal. See Practice Book § 61-8; Board of Police Commissioners v. White, 171 Conn. 553, 557, 370 A.2d 1070 (1976); and Wesleyan University v. Rissil Construction Associates, Inc., 1 Conn. App. 351, 355, 472 A.2d 23, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984).

       General Statutes § 8-50 provides in relevant part: “An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it deems necessary for its purposes under this chapter after the adoption by it of a resolution declaring that the acquisition of such real property described therein is necessary for such purposes. . . .”

       As stated previously, “[t]he value of the lease is properly arrived at, in the case of a complete talcing, by subtracting the rent provided for under the lease from the lair market value of the lease.” Canterbury Realty Co. v. Ives, supra, 153 Conn. 382. We note that this formula applies only when the condemnee has not yet paid rent for the time remaining on the lease. Consequently, even if the construction contribution could be considered a rental equivalent payment, the $100,106 should not have been deducted from the value of the defendant’s leasehold interest because, in that case, the defendant already would have paid that amount in rent when it made the construction contribution.

       Practice Book § 60-5 provides in relevant part: “If the court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision. ...”