text:
    State of Connecticut v. Scott Tyler
    (4178)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 8
    decision released March 18, 1986

      Terence A. Sullivan, assistant state’s attorney, for the appellant (state).

      Joseph D. Courtney, with whom, on the brief, was Arthur P. Meisler, for the appellee (defendant).
   Borden, J.

This is the state’s appeal from the trial court’s judgment dismissing a two count information following the defendant’s satisfactory completion of his accelerated pretrial rehabilitation program pursuant to General Statutes § 54-56e. The sole issue before us is whether the trial court erred in granting the application of the defendant for accelerated rehabilitation, and subsequently dismissing the information, where that information alleged in two counts the commission of separate offenses on different dates. We agree with the state that, under these facts and circumstances, this defendant was ineligible for the pretrial program for accelerated rehabilitation, and we therefore find error in the trial court’s decision to grant the defendant’s application. Accordingly, the judgment dismissing the information must be set aside.

The facts are not in dispute. The defendant was charged, in a single information, with two counts of sale of marihuana, in violation of General Statutes § 21a-277 (b). The two offenses were alleged to have been committed on March 24,1983, and April 7,1983. On May 10,1983, the defendant applied for accelerated pretrial rehabilitation pursuant to General Statutes § 54-566. The state objected to the application on the ground that General Statutes § 54-56e is applicable only to an individual who is accused of “a crime”; see footnote 1, supra; and that this defendant was ineligible for the program because he was charged with two separate and distinct crimes committed on separate dates. The trial court granted the defendant’s application over the state’s objection, released the defendant to the custody of the office of adult probation for a period of two years, and ordered certain conditions of probation. The case was continued to May 9, 1985, at which time the court dismissed the information with prejudice, and granted the state’s motion for permission to appeal.

Section 54-56e of the General Statutes confers discretion upon trial courts to invoke the accelerated rehabilitation program for certain persons “accused of a crime, not of a serious nature.” (Emphasis added.) “The main thrust of the statute is suspension of prosecution.” State v. Spendolini, 189 Conn. 92, 96, 454 A.2d 720 (1983).

State’s attorneys are given broad discretion to determine whether a particular situation requires prosecution for one or more charges. See State v. Ellis, 197 Conn. 436, 478, 497 A.2d 974 (1985). This discretion applies to the decision of whether to charge one or more statutory offenses arising out of a single criminal transaction. Id. It also applies to the decision of whether to prosecute at all on any single particular offense, even where there is sufficient evidence to do so. See State v. Ellis, supra, 478 n.28; LaFave, “The Prosecutor’s Discretion in the United States,” 18 Am. J. Comp. L. 532, 532-38, 541 (1970).

In the present situation, the state’s attorney’s discretionary decision to charge this defendant with muítiple offenses, and the trial court’s discretionary decision to suspend prosecution, stand in conflict. At the center of this conflict is the question of whether this defendant is charged with “a crime” within the meaning of General Statutes § 54-56e.

The state does not suggest that the criterion for determining whether “a crime” is charged should depend upon the number of charges brought. From the above discussion, it is clear that if the number of charges were the determinative criterion, then an accused’s eligibility for accelerated rehabilitation would, in each case, be subject to the prosecutor’s discretionary charging decision. See State v. Ellis, supra. It is equally clear that this result would be exactly the opposite of the intent of the legislature. Shortly after General Statutes § 54-56e was first enacted in 1973; Public Acts 1973, No. 73-641; the legislature amended the original version of the statute, which vested power to invoke the program solely in the discretion of the prosecutor, and transferred that discretion to the trial court. See Public Acts 1974, No. 74-38.

The defendant suggests that the discretionary decision of the trial court to grant accelerated rehabilitation, where an individual is charged with more than one offense, should not be hampered by “arbitrarily imposed” criteria which govern whether those charges constitute “a crime” within the meaning of the statute. Thus, he proposes that the question of whether a defendant’s alleged conduct constitutes “a crime” be left solely to the discretion of the trial court, unhampered by considerations of whether the charged offenses arose out of the same transaction. He points to the fact that there is no language in the statute requiring any particular limits on trial court discretion, and he suggests that the sole issue on review should be whether the trial court abused its discretion.

This argument, although plausible, does not persuade us. It is true that the statute aims to vest a great deal of discretion in the trial court. But the statute limits that discretion by pinning it to “persons accused of a crime,” a phrase which suggests a concept with more definite legal parameters than can be feasibly drawn pursuant to the defendant’s reading of the statute. The word, “crime,” is ordinarily used as a term of art; cf. General Statutes § 53a-24 (a) (“ ‘crime’ comprises felonies and misdemeanors”); and the article, “a,” obviously means the singular. Thus, the phrase, “a crime,” signifies a singular legal concept in the criminal law. The defendant’s argument permits more violence to the phrase than it can lexicographically withstand. This conclusion is buttressed by reference to the statute which governs the youthful offender program. See General Statutes § 54-76b. There, the legislature chose to extend eligibility for youthful offender status to a youth who has committed “a crime or crimes.” Because the legislature used the same phrase in both the singular and plural in this related context, we may infer that the use of the phrase in the singular in the present context is meant as a restriction upon, rather than an expansion of, trial court discretion. Cf. Link v. Shelton, 186 Conn. 623, 627, 443 A.2d 902 (1982). We, therefore, reject the defendant’s argument.

The ultimate question of the propriety of a trial court’s exercise of discretion pursuant to General Statutes § 54-56e must be resolved on a case by case basis. The disposition of this appeal from the trial court’s discretionary decision to grant accelerated rehabilitation, therefore, must turn upon the application of a flexible criterion for determining whether this multi-count information charges this defendant with “a crime” within the meaning of General Statutes § 54-56e.

We find an apt legal construct to provide such a flexible criterion in the single transaction test as it has been developed in the context of double jeopardy principles. Thus, we agree with the state that a common sense interpretation of this statutory provision; see State v. Gaines, 196 Conn. 395, 400, 493 A.2d 209 (1985); is that the phrase, “a crime,” means a single criminal act or transaction, out of which one or more criminal charges might arise. In the double jeopardy context, where multiple charges are brought against a defendant, the determination of whether those charges constitute multiple prosecution or punishment for a single offense begins with an analysis of the facts underlying the charging documents. See State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985). Similarly, in the accelerated rehabilitation context, the question of whether multiple charges describe “a crime” should begin with an analysis of the facts and circumstances underlying the charging documents. See State v. Lavorgna, 37 Conn. Sup. 767, 437 A.2d 131 (1981) (abuse of discretion to determine seriousness of offense without reference to facts underlying charging documents). We hold that the determinative criterion governing General Statutes § 54-56e is whether the charges arose out of the “same act or transaction.” See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

This criterion, being essentially fact based, affords the necessary flexibility to the trial court in the exercise of discretion pursuant to General Statutes § 54-56e. Furthermore, this criterion squares with the language of the last two sentences of the statute, which require that, upon the defendant’s completion of the terms of his probation, the court dismiss “such charges.” See footnote 1, supra.

In the present case, the defendant was charged with two counts of sale of marihuana on two separate dates, fourteen days apart. In State v. Thompson, 197 Conn. 67, 72, 495 A.2d 1054 (1985), where the defendant was charged with two counts of sale of cocaine on two separate dates, five days apart, our Supreme Court rejected the defendant’s claim that the two sales “were in reality one transaction merely temporally divided.” There, as here, the two transactions involved the same parties, the same location and the same drug. Nevertheless, the Supreme Court reviewed the record and concluded that “the parties did not firmly commit on [the first day] to meet five days later for a second installment. In short, there was no temporal continuity or clear connection between the two sales.” Id., 73. Compare State v. Goldson, 178 Conn. 422, 423-24, 423 A.2d 114 (1979) (separate offenses allegedly committed on same date at same time constitute same transaction).

Likewise, in the present case we conclude that, because there is no temporal continuity or clear connection between these two sales, they constitute more than one single criminal act or transaction. Thus, this defendant, who was charged with more than “a crime” within the meaning of General Statutes § 54-56e, was ineligible for the accelerated rehabilitation program. The trial court, therefore, abused its discretion by granting the defendant’s application.

The defendant argues that application of the “same transaction” criterion violates the maxim of statutory construction whereby statutes are construed “to accomplish a reasonable and rational result.” Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979). In this regard, the defendant argues that if “a crime” is committed only where the various charged offenses are alleged to have occurred on the same date, at the same time, and at the same location, then the following anomaly arises. A defendant who made three sales of marihuana at the same time and place would be eligible for accelerated rehabilitation, whereas a defendant who only made two sales but on separate dates would not. Similarly, according to the defendant, an accused could commit three burglaries in one apartment building at the same time and be eligible for accelerated rehabilitation, whereas another, who committed only two burglaries but on separate dates, would be ineligible. These hypothetical results, however, rest upon an assumption that we do not share, namely, that the “same act or transaction” criterion would necessarily lead to the results posited by the defendant.

Under these circumstances, a trial court could reasonably reach the conclusion that a person accused of three offenses on a single date is ineligible for accelerated rehabilitation, just as the individual who commits two offenses on separate dates is ineligible. If the triple marihuana seller sold drugs to separate persons on the same date, or to the same person at separate times on the same date where there is no clear connection between the sales, a trial court could reasonably conclude that such a person is ineligible for accelerated rehabilitation. Likewise, a court could reasonably conclude that the person who commits three separate burglaries of separate residences which coincidentally occur on the same date, is ineligible for accelerated rehabilitation.

There is error, the judgment dismissing the information is set aside and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       General Statutes § 54-56e provides: “accelerated pretrial rehabilitation. There shall be a pretrial program for accelerated rehabilitation of persons accused of a crime, not of a serious nature. The court may, in its discretion, invoke such program on motion of the defendant or on motion of a state’s attorney or prosecuting attorney with respect to an accused who, the court believes, will probably not offend in the future and who has no previous record of conviction of crime and who states under oath in open court under the penalties of perjury that he has never had such program invoked in his behalf, provided the defendant shall agree thereto and provided notice has been given by the accused, on a form approved by rule of court, to the victim or victims of such crime, if any, by registered or certified mail and such victim or victims have an opportunity to be heard thereon. This section shall not be applicable to any person charged with a violation of section 14-227a, 53a-56b or 53a-60d. Unless good cause is shown, this section shall not be applicable to persons accused of a class A, class B, or class C felony or to any youth who has previously been adjudged a youthful offender under the provisions of sections 54-76b to 54-76n, inclusive. Any defendant who enters such program shall agree to the tolling of any statute of limitations with respect to such crime and to a waiver of his right to a speedy trial. Any such defendant shall appear in court and shall be released to the custody of the office of adult probation for such period, not exceeding two years, and under such conditions as the court shall order. If the defendant refuses to accept, or, having accepted, violates such conditions, his case shall be brought to trial. If such defendant satisfactorily completes his period of probation, he may apply for dismissal of the charges against him and the court, on finding such satisfactory completion, shall dismiss such charges. Upon such dismissal all records of such charges shall be erased pursuant to section 54-142a.” (Emphasis added.)

       In passing, we note that the legislative history of the statute, from which both parties seek some comfort, is not helpful in deciding this specific question. See 16 S. Proc., Pt. 7, 1973 Sess., pp. 3601-3603; 17 H. R. Proc., Pt. 2, 1974 Sess., pp. 626-28; 16 H. R. Proc., Pt. 15, 1973 Sess., pp. 7553-55; 16 H. R. Proc., Pt. 11, 1973 Sess., pp. 5712-15; Hearings before Joint Standing Committee on Judiciary, 1974 Sess., pp. 23-30.

       In reaching this conclusion, we add the caveat that “[m]odem jurisprudence warns of the dangers of reliance on doctrinal transfer without regard to the constraints of context.” State v. Ellis, 197 Conn. 436, 482, 497 A.2d 974 (1985) (Peters, C. J., concurring). The development of the “same act or transaction” test, in the accelerated rehabilitation context, must necessarily occur on a gradual case by case basis, unless the legislature chooses to expand further upon the statutory guidelines.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Larry Manzin v. United Bank and Trust Company, Executor (Estate of Hannah M. Lidington), et al.
    (3704)
    Hull, Borden and Daly, Js.
    Argued December 13, 1985
    decision released March 18, 1986

      John A. Barbieri, for the appellant (plaintiff).

      Walter C. Nicksa, Jr., for the appellee (named defendant).
   Daly, J.

The plaintiff commenced this action to recover a real estate brokerage commission from the defendants, stemming from the sale of land in New Hartford. From the judgment rendered in favor of the named defendant, United Bank and Trust Company, the plaintiff has appealed.

The matter was submitted to the trial court on an agreed statement of facts which indicated that the plaintiff, Larry Manzin, a licensed realtor in Connecticut, would be entitled to a real estate commission of 10 percent if he succeeded in procuring a buyer, ready, willing and able to purchase the premises owned by the decedent, Hannah Lidington, for whom the defendant, United Bank and Trust Company, is acting as executor. The plaintiff procured a buyer and the property was sold by Lidington for $185,000, $15,000 in a cash down payment and the balance in a note secured by a mortgage on the property. At the closing, Lidington was unable to pay the plaintiff his 10 percent commission ($18,500) out of the buyer’s $15,000 cash down payment. From the $15,000 cash payment, Lidington had to pay Dwight Murphy, a party to the real estate contract, the sum of $11,000 for his one-half interest in approximately twenty-two acres of the land being sold, which left her only $4000 to pay the plaintiff’s commission and the closing costs.

Because of these payment arrangements, the plaintiff agreed to accept as payment of his commission a portion of each payment made on the mortgage note. The parties’ statement of facts submitted to the trial court provided in relevant part: “At the time of the closing, the plaintiff agreed to accept payment of his commission or service fee due him as follows: $1,500 at the time of transfer of title, $1,500 when the purchaser paid the decedent the first payment of principal due on the purchase money note, and thereafter 10% of each principal payment paid by the purchaser on account of said purchase money mortgage.”

Lidington paid the plaintiff $6500 of the $18,500 commission. After making the first principal payment on the mortgage, the purchaser paid an additional $7798 on account of the principal due, and thereafter defaulted, resulting in the foreclosure of the mortgage. The plaintiff sued Lidington’s executor for the remaining commission balance of $12,000. The trial court found that the agreement provided that 10 percent of any payments made by the purchaser was to be paid to the plaintiff. Because no further payments, beyond the $7798, were paid by the purchaser to the executor bank, the trial court determined that there was nothing due and owing from the bank and therefore rendered judgment in its favor.

The plaintiff has appealed claiming the trial court erred in construing the subsequent agreement of the parties concerning the payment of the plaintiff’s commission.

“On appeal, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where 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; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. That is the standard and scope of this court’s judicial review of decisions of the trial court. Beyond that, we will not go.” Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 618, 495 A.2d 1006 (1985). “Unless there was an error of law or a legal or logical inconsistency with the facts found, the conclusion of the trial court must stand. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983).” Equico Lessors, Inc. v. Rockville Reminder, Inc., 4 Conn. App. 102, 106, 492 A.2d 528 (1985).

The plaintiff contends that the modified agreement is not a valid contract and lacks consideration principally because his right to a commission is governed by the original listing agreement. “Whether a contract exists is a question of fact for the court to determine.” Randolph Construction Co. v. Kings East Corporation, 165 Conn. 269, 277, 334 A.2d 464 (1973); Finley v. Aetna Life & Casualty Co., 5 Conn. App. 394, 408, 499 A.2d 64, cert. granted, 198 Conn. 802, 501 A.2d 1213 (1985). Parties may alter any term of an existing contract by entering into a subsequent contract. Mutual promises qualify as sufficient consideration for a binding contract. Gordon v. Indusco Management Corporation, 164 Conn. 262, 267-68, 320 A.2d 811 (1973); Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959). “For a valid modification, there must be mutual assent to the meaning and conditions of the modification and the parties ‘must assent to the same thing in the same sense ... if they are to vary the contract in any way.’ ” Lar-Rob Bus Corporation v. Fairfield, 170 Conn. 397, 402, 365 A.2d 1086 (1976). “The meaning to be given subsequent agreements, therefore, depends on the intention of the parties. As intention is an inference of fact, ‘the conclusion is not reviewable unless it was one which the trier could not reasonably make.’ ” (Citations omitted.) Id., 402-403. The trial court’s finding here that the plaintiff had agreed to the modification of the brokerage agreement was not clearly erroneous.

The trial court could reasonably infer that no transfer would have been consummated had the commission arrangement not taken into consideration the small down payment and the large mortgage note and deed involved. In the case of an ordinary, unconditional brokerage arrangement, a commission is due when the broker produces a buyer who is ready, willing and able. Where the broker’s right to a commission is “expressly made dependent upon the occurrence of a specific condition,” as is the case here, however, then this reasoning would not control. Nugent v. DelVecchio, 36 Conn. Sup. 532, 537, 415 A.2d 1339 (1980); see Walsh v. Turlick, 164 Conn. 75, 80, 83, 316 A.2d 759 (1972). The payment of a commission may depend upon a condition beyond that implied by the ordinary broker’s contract, for example, the payment of purchase price installments toward the commission. In this circumstance, the refusal or failure of the buyer to perform is fatal to the broker’s recovery of the commission. See Ferrara v. Firsching, 91 Nev. 254, 533 P.2d 1351, 1352 (1975).

With respect to the plaintiff’s claim of unjust enrichment accruing to the decedent’s estate by virtue of its foreclosing the mortgage deed and note, a similar claim was rejected in Craig v. Margrave, 84 Nev. 638, 446 P.2d 653, 654 (1968). We reject it here as well.

The burden rests upon an appellant to show that there was error in the judgment from which the appeal was taken. Holden & Daly, Connecticut Evidence, § 60i. The plaintiff has not satisfied his burden.

There is no error.

In this opinion the other judges concurred.

       Hannah M. Lidington is deceased and United Bank and Trust Company has qualified as the executor of her estate.

       The defendant Dwight Murphy was a party with Hannah Lidington to the real estate contract. He received full compensation for his interest in the property sale in question and is not involved in this appeal.


author: Borden, J.

text:
    Ronald G. Sutton v. Carl Robinson, Warden (Somers Correctional Institution)
    (3325)
    Dupont, C. J., Borden and Bieluch, Js.
    Argued January 9
    decision released March 25, 1986

      G. Douglas Nash, assistant public defender, with whom, on the brief, was Joan A. Leonard, assistant public defender, for the appellant (petitioner).

      Julia D. Dewey, assistant state’s attorney, for the appellee (respondent).
   Borden, J.

The petitioner, who is incarcerated because of his convictions of sexual assault, kidnapping and threatening, appeals from the judgment of the trial court quashing his petition for a writ of habeas corpus. The petitioner’s petition was based solely on a claim of ineffective assistance of counsel at his trial. This case raises the issue of the sufficiency of the petitioner’s allegation, in his petition, that he had not deliberately bypassed a direct appeal, where the same petition also alleged that he had a direct appeal of his conviction pending in our Supreme Court. We find error.

The petitioner was sentenced for his convictions on October 5,1982, and filed a direct appeal in the Supreme Court. On November 21, 1983, while that appeal was pending, he filed this petition for a writ of habeas corpus, specifying assorted omissions by his trial counsel which, he claimed, rendered the counsel’s aid constitutionally ineffective. The claimed omissions clearly raised factual issues the significance of which could not be resolved solely from the trial transcript.

His petition also alleged as follows: “The petitioner has not deliberately bypassed a direct appeal to the Connecticut Supreme Court in that: (1) the petitioner has a pending appeal from the judgment in State v. Sutton, CR7-57467, before the Connecticut Supreme Court; (2) the appeal does not raise the issue of ineffective assistance of counsel in State v. Sutton in that the record does not reflect a sufficient factual basis, and, lacking that basis, the claim ‘is more properly pursued . . . on a petition for a writ of habeas corpus rather than on direct appeal.’ State v. Mason, 186 Conn. 574, [578-79, 442 A.2d 1335] (1982).” The trial court granted the respondent’s motion to quash the petitioner’s petition for failure to state a claim upon which relief can be granted, which motion was filed pursuant to Practice Book § 532. Thus, the legal sufficiency of the petitioner’s allegations regarding deliberate bypass of an appeal is the sole issue before us.

The petitioner claims that the court erred in quashing the petition because the petition made clear that his ineffective assistance of counsel claim could only be developed by evidence produced in a habeas corpus setting, and because his petition included the required allegation that he did not deliberately bypass a direct appeal. Thus, he argues, taking his allegations as true, as the court must do pursuant to Practice Book § 532, his petition was legally sufficient. We agree.

It is by now fundamental that a habeas corpus petitioner asserting a claim not raised on direct appeal must allege and prove that he did not deliberately bypass a direct appeal. Staples v. Robinson, 193 Conn. 439, 441, 476 A.2d 580 (1984). In State v. Rivera, 196 Conn. 567, 571, 494 A.2d 570 (1985), our Supreme Court decided “that the deliberate bypass rule should be relaxed in cases in which the sole claim for relief from a criminal conviction is a claim of ineffective assistance of counsel.” The Supreme Court has very recently, however, found occasion to reconsider the deliberate bypass rule and “once more to lower this barrier to habeas corpus relief.” State v. Leecan, 198 Conn. 517, 541, 504 A.2d 480 (1986). “It is [now] preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding. A [petitioner] should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal.” Id., 541-42. It is now clear, therefore, that Leecan controls this case.

On the basis of “this modification of our procedure in regard to ineffective assistance claims”; id., 542; we hold that the trial court erred in quashing the petitioner’s petition.

There is error, the judgment quashing the petition is set aside and the case is remanded for further proceedings in accordance with law.

In this opinion the other judges concurred.

       The trial court permitted this appeal by certifying that a question is involved in the decision which ought to be reviewed by this court. General Statutes § 52-470 (b).

       Practice Book § 532 provides: “The sufficiency of the petition on which the writ was granted and the propriety of the issuance of the writ may be tested, before a return is filed, by a motion to quash. On such a motion, the allegations of the petition are deemed admitted. The motion to quash is not a means by which to test the legal sufficiency of the facts alleged in a return or the answer to the return.”

       The petitioner’s direct appeal was decided by the Supreme Court while his habeas corpus appeal was pending in this court. See State v. Sutton, 197 Conn. 485, 498 A.2d 65 (1985).


author: Hull, J.

text:
    Burton L. Zempsky’s Appeal from Probate
    (3440)
    Hull, Spallone and Daly, Js.
    Argued January 17
    decision released March 25, 1986

      Karen F. Tross, with whom, on the brief, was Ira B. Grudberg, for the appellant (plaintiff).

      Irving H. Perlmutter, with whom was Matthew G. Galligan, for the appellees (defendants).
   Hull, J.

This case, which is a companion case to Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 506 A.2d 1054 (1986), raises the question of whether the trial court erred by holding that the plaintiff, a coexecutor and cotrustee under a decedent’s will lacked the aggrievement necessary to appeal from the Probate Court’s action revoking that will and admitting to probate a later will in which the decedent named a different fiduciary. Under the circumstances of this case, we find no error.

John F. Dichello of Wallingford died on July 21,1979. His will dated September 2,1975, and a February 14, 1979 codicil were admitted to probate on August 16, 1979. In accordance with the will, the plaintiff, Burton L. Zempsky, a business associate of the decedent, and the decedent’s son, John F. Dichello, Jr., were named coexecutors of the will and cotrustees of a testamentary trust created in the will. From August 16, 1979, to April 2, 1984, the plaintiff, as a cofiduciary, paid federal and state taxes, made distributions to the beneficiary legatees and submitted an interim account which was approved by the court.

On March 15, 1984, Mildred Dichello, widow of the decedent, and Gloria Dichello Hall, his daughter, offered a will dated December 26, 1975, for probate. There were three differences between the September, 1975 will and the December, 1975 will: (1) the December will named Gloria Dichello Hall sole executrix and trustee; (2) the December will eliminated a requirement contained in the September will, that the wife of the decedent be consulted about the voting of any closely held corporation stock; and (3) the December will omitted an interdiction against commingling funds of separate trusts contained in the September will.

Zempsky objected to the admission of the December will. His cofiduciary, John Dichello, Jr., did not oppose the December will, nor did he join in Zempsky’s appeal to the Superior Court. The Probate Court, in spite of Zempsky’s opposition, rendered a decree revoking the September 2, 1975 will and admitting the December will. In accordance with the December will, the Probate Court revoked the appointment of the former co-fiduciaries and named Gloria Dichello Hall as sole executrix and trustee.

On April 18,1984, Zempsky appealed these decrees of the Probate Court to the Superior Court. Mildred Dichello and Gloria Dichello Hall moved to dismiss the appeal on the ground that Zempsky did not allege that he was aggrieved by the decrees as required to appeal under General Statutes § 45-288, nor could his aggrievement be determined from the face of the records of the Probate Court proceedings so as to entitle him to appeal under General Statutes § 45-293. The court granted the motion to dismiss, reasoning that to prosecute an appeal from probate, a plaintiff must be aggrieved by the decree, and that the aggrievement must appear in the motion to appeal or on the face of the Probate Court proceedings and records. The court found that the plaintiff had not met these requirements and, accordingly, it concluded that the Superior Court had no subject matter jurisdiction over the appeal. On the basis of these findings and this conclusion, the court granted the defendants’ motion to dismiss. Zempsky appealed from the resulting judgment claiming the trial court erred in finding that he lacked aggrievement.

To prosecute an appeal from a Probate Court decree, the plaintiff must be aggrieved by that decree. General Statutes § 45-288; Gaucher v. Estate of Camp, 167 Conn. 396, 400, 355 A.2d 303 (1974). The plaintiff’s interest must appear in the motion to appeal or on the face of the proceedings and records. General Statutes § 45-293; Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). If it does not appear from these documents that the plaintiff is aggrieved, the Superior Court has no subject matter jurisdiction over the appeal, and it is, therefore, subject to dismissal. Practice Book § 143 (1); Hartford Kosher Caterers, Inc. v. Gazda, 165 Conn. 478, 483, 338 A.2d 497 (1973); Kerin v. Goldfarb, 160 Conn. 463, 467, 280 A.2d 143 (1971).

The plaintiff does not claim that he alleged aggrievement. He claims, rather, that there were sufficient facts on the face of the probate record demonstrating his interest to satisfy the provisions of General Statutes § 45-293. In support of this claim, the plaintiff relies almost entirely on a statement in Avery’s Appeal, 117 Conn. 201, 203-204, 167 A. 544 (1933), that “[i]t is also the duty of the executor named in a will to present it for probate and endeavor to procure its admission, and this includes a right of appeal from a decision of the Court of Probate refusing to admit it . . . .” The plaintiff argues that it would be inconsistent if the executor of a will has the right to appeal the Probate Court’s refusal to admit the will, but has no right to appeal that court’s order revoking admission of the will. He also claims that the weight of authority in other jurisdictions recognizes such a right.

The plaintiff’s arguments fly in the face of strong Connecticut authority. The general rule in Connecticut has been stated clearly in Avery’s Appeal, supra. In Avery, the Probate Court admitted a decedent’s will and thereby revoked Avery’s earlier appointment as administrator. Avery appealed under General Statutes (Rev. to 1930) § 4990 which allowed “[a]ny person aggrieved by any order denial or decree of a court of probate in any matter . . .’’to appeal to the Superior Court. The issue before the court was, therefore, whether a person removed as an administrator because of the admission to probate of a later will was aggrieved within the meaning of the statute by the decree which admitted that will. The court concluded that “persons as to whom a right of appeal is recognized are those who are acting in a fiduciary or representative capacity under a subsisting appointment which has not been terminated, by revocation or otherwise, and who therefore are under present duty to protect the estate from diversion. Smith v. Sherman, 58 Mass. 408 [1819].” (Emphasis added.) Avery’s Appeal, supra, 204-205.

The court then analogized to Cairns v. Donahey, 59 Wash. 130, 109 P. 334 (1910). In that case, a Washington Probate Court admitted a will which revoked previously granted letters of administration. The party who had been superseded as administrator was held not to be entitled to appeal from the order. Our Supreme Court, in reaching its decision in Avery, quoted with approval the Washington Supreme Court’s decision in Cairns: “We fail to understand how the administrator has any interest in the subject-matter of this appeal, or how he is injuriously affected by the final order entered. He has no interest in the estate other than for compensation that may be due him.” Avery’s Appeal, supra, 205-206, quoting Cairns v. Donahey, supra, 133; see also Gaucher v. Estate of Camp, supra, 401; Spencer’s Appeal, 122 Conn. 327, 331-32, 188 A. 881 (1937).

The plaintiff attempts to get around the well settled rule of Avery’s Appeal, supra, and its progeny by relying on O’Leary v. McGuinness, 140 Conn. 80, 98 A.2d 660 (1953). In O’Leary, the testatrix bequeathed her residuary estate to her executors and directed them to pay the residue to any charities they could select unanimously. She named the plaintiff and Bishop Eugene J. McGuinness as trustees and executors. By the terms of the codicil to the will, the testatrix, while retaining Bishop McGuinness, substituted two individuals and a bank as executors in the plaintiffs stead and modified the will by adding the proviso that the only charities that could be selected were organizations to which gifts were deductible under federal estate tax law. The codicil also provided that the selection of the recipient be made by a majority of the executors. Id., 83. The plaintiff, as executor and trustee under the original will, appealed to the Superior Court from the decree of the Probate Court admitting the codicil to the will. The Superior Court dismissed the appeal on the ground that the plaintiff was not a person aggrieved by the decree and the plaintiff appealed to the Supreme Court.

The Supreme Court, in analyzing the plaintiffs claim, made a distinction between aggrievement of an executor and a trustee. “The authorities are in conflict on the question whether an executor named in an earlier will is in a position to contest the admission to probate of a later will where, under the law, a person must be ‘aggrieved’ in order to make such a contest. 2 Page, Wills (Lifetime Ed.) p. 162. That, however, is quite a different question from the one now before us. An executor has only the authority to take the assets of the estate into his possession and administer them to the point of distribution. A trustee named in an earlier will not only receives his appointment by virtue of the will, if and when it is determined that it is the last will of the decedent, but is bequeathed the legal title to the trust res. In that respect he is in the same position as any legatee. See Cornwall v. Todd, 38 Conn. 443, 445 [1871]. A legatee under an earlier will may appeal from the admission of a later one. Buckingham’s Appeal, 57 Conn. 544, 545, 18 A. 256 [1889]; Spencer’s Appeal, supra, 333. For this reason, even in jurisdictions which hold that an executor has no right to contest a later will, it is uniformly held that a trustee is aggrieved by the probate of a later will which adversely affects his cestuis que trustent. Reed v. Home National Bank, 297 Mass. 222, 223, 8 N.E.2d 601 [1937]; Johnston v. Willis, 147 Md. 237, 243, 127 A. 862 [1925]; In re Rogers, 15 N.J. Super. 189, 202, [83 A.2d 268 (1951), modified, 13 N.J. 508, 100 A.2d 527 (1953)]; note, 112 A.L.R. 659; 2 Page, op. cit., p. 163.” (Emphasis added.) O’Leary v. McGuinness, supra, 87-88.

The court noted that the issue of whether a trustee had the duty of protecting the interest of beneficiaries named in a will against extinguishment by the admission to probate of a codicil had not been answered by Avery’s Appeal, supra, which merely held that a displaced administrator lacked aggrievement. Discussing Avery, the court commented on the distinctions between the cases: “an administrator who owes his very existence as such to his appointment by the Probate Court is in quite a different position from that of a trustee having powers like those granted to the plaintiff under the present will. In Spencer’s Appeal, supra, we held that an executor and trustee under an earlier will was not aggrieved by the probate of a later will, but that was because the same beneficiaries received the same bequests in both of the wills. The persons whom the executor and trustee represented were not aggrieved.” O’Leary v. McGuinness, supra, 87.

In O’Leary, the Supreme Court relied on Waterbury Trust Co. v. Porter, 130 Conn. 494, 35 A.2d 837 (1944), for the proposition that “ ‘[i]n any action where a judgment has been rendered which will result in the destruction of the trust fund, a trustee has in his representative capacity such an interest that he may properly claim to be aggrieved.’ ” O’Leary v. McGuinness, supra, 86, quoting Waterbury Trust Co. v. Porter, supra, 499-500. The Supreme Court emphasized that, in determining whether an appellant has been aggrieved, the question is whether there is a possibility, as distinguished from a certainty, that some legally protected interest which he had in the estate has been adversely affected. O’Leary v. McGuinness, supra, 83.

The court concluded that it “is well settled that a trustee under a will has a duty to protect the interests of the beneficiaries of the trust. Where those interests are adversely affected by a later will or codicil, he is aggrieved by a probate decree allowing the later will or codicil so that he may appeal therefrom.” (Emphasis added.) O’Leary v. McGuinness, supra, 88.

The plaintiff in this case claims that there is a possibility that some interest of the beneficiaries of the two trusts might be adversely affected by the admission of the December will. To support this claim the plaintiff points to two insignificant changes in the later will. The first is the omission from the December will of a precatory provision in which the decedent expressed his desire that his widow be consulted in the sale of any closely held stock. The other provision found only in the September will proscribed commingling of separate trust funds in investments whereas the comparable provision in the December will allowed the fiduciary more latitude. Even noting these changes, it is readily apparent that the December will is substantially the same as the September will. The only important distinction is the change in fiduciaries. The beneficiaries of the trust are the same under both wills. Accordingly, the admission of the December will did not materially change the situation.

An additional factor distinguishes this case from O’Leary. The Supreme Court in that case reasoned that if the codicil were to become operative, the situation would be materially changed because some charities on which the plaintiff and Bishop McGuinness could agree would not be the ones selected by a majority of the executors and trustees named in the codicil. Thus, the interests of those charities had been adversely affected by the decree admitting the codicil to probate. Yet the beneficiaries were not determined, and accordingly, could not contest admission of the codicil on their own behalf. If their interests were to be protected at all, the trustee was the only party in a position to do it. The court therefore concluded that, as a trustee, it was the plaintiff’s duty to protect the interests of those organizations. The beneficiaries here do not question the provisions of the December will. Here, the beneficiaries can protect their own interests. The Supreme Court in Avery’s Appeal, 117 Conn. 201, 206, 167 A. 544 (1933), aptly summed up the situation in this case when it stated: “we cannot recognize any duty and right in the appellant to contend, by appeal, against the will, on behalf of heirs who so far as appears were quite capable and competent to protect themselves had their interests dictated such a course.”

“The concept of standing, as presented by the question of aggrievement, ‘is a practical and functional one designed to assure that only those with a genuine and legitimate interest can appeal an order of the Probate Court.’ ” Merrimac Associates, Inc. v. DiSesa, 180 Conn. 511, 516, 429 A.2d 967 (1980). The plaintiff does not have such an interest.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 45-288 provides in pertinent part as follows: “Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may appeal therefrom to the superior court for the judicial district in which such court of probate is held. ...”

       General Statutes § 45-293 provides: “In each appeal from probate or from the actions of commissioners, the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate.”

       The Avery court also held that one who has a present pecuniary interest which the decree affects injuriously is within the statute; Avery’s Appeal,
        117 Conn. 201, 296, 167 A. 544 (1933); but distinguished deprivation of future compensation as not providing aggrievement. Id. Zempsky, however, made no claim of any pecuniary loss in this case.

       The plaintiff, Burton Zempsky, averred in his brief in the companion case of Hall v. Dichello Distributors, Inc., 6 Conn. App. 530, 506 A.2d 1054 (1986), that the only difference between the two wills is the fiduciaries.


text:
    Gloria Dichello Hall, Executrix (Estate of John F. Dichello) v. Dichello Distributors, Inc., et al.
    (4243)
    Hull, Spallone and Daly, Js.

      Argued January 17
    decision released March 25, 1986

      Jules Lang and Taggart D. Adams, with whom, on the brief, was Ira B. Grudberg, for the appellants (named defendant et al.).

      John C. Yarns, Jr., with whom were George A. Dagon, Jr., and Geraldine A. Lupoli, for the appellee (plaintiff).
   Hull, J.

In this action, the defendants, Dichello Distributors, Inc. (DDI), James Dichello and Burton Zempsky, appeal from a judgment of the Superior Court requiring Zempsky to turn over to the plaintiff certain shares of stock in DDI, a corporation which distributes beer for Anheuser Busch. The defendants raise numerous grounds of error all primarily concerning the Superior Court’s jurisdiction over the action and the procedures it used in reaching its decision. We conclude that the defendants’ claims are without merit, and, accordingly, we find no error.

A brief summary of the undisputed facts and certain of the trial court’s conclusions and orders is necessary as a background for our consideration of the issues raised in this appeal. On July 21,1979, John F. Dichello (Dichello, Sr.), who, with his brother, James, began DDI, died. The bulk of the decedent’s estate, which passed into a two part testamentary trust, consists of shares of common stock which constitute a 50 percent interest in DDL The remaining shares are owned by James Dichello.

Zempsky and John Dichello, Jr. (Dichello, Jr.), were appointed coexecutors and cotrustees under the decedent’s original will and the stock was transferred to them in their fiduciary capacities. In 1984, the plaintiff, Gloria Dichello Hall, and her mother, Mildred Dichello, offered for probate a later will than that under which Zempsky and Dichello, Jr., were appointed. The Probate Court admitted that will which appointed Hall sole executrix and trustee. Zempsky and James Dichello, however, refused to recognize Hall’s ownership of the 50 percent of the shares of DDL While Zempsky and Dichello, Jr., delivered to Hall all of the other assets of the decedent’s estate, Zempsky refused to deliver the stock certificates to Hall and to have them registered in her name.

Zempsky, in Zempsky’s Appeal from Probate, 6 Conn. App. 521, 506 A.2d 1050 (1986), the companion to this case, appealed the Probate Court’s action, which in effect removed him as executor and trustee, to the Superior Court. The court dismissed the case finding that it did not have jurisdiction over Zempsky’s appeal because he had not shown aggrievement by the decrees of the Probate Court as required by General Statutes §§ 45-288 or 45-293. Today, we affirmed that judgment.

On September 13,1984, Hall commenced this action against DDI, James Dichello, Zempsky and Dichello, Jr. seeking delivery and recording of the appropriate shares of stock, various forms of permanent injunctive relief, other proper legal or equitable relief, and damages. On November 5,1984, DDI filed a motion to stay on the ground that the question of who was the proper fiduciary was on appeal to this court in the companion case of Zempsky’s Appeal from Probate, supra. That motion was denied. On January 30, 1985, DDI filed a motion to dismiss on the grounds that the Probate Court and not the Superior Court had jurisdiction over the case. That motion was also denied. After trial, the court ruled in favor of Hall and rendered a partial judgment granting equitable relief on May 25, 1985. The court ordered that Zempsky and Dichello, Jr., deliver the stock certificates to Hall, that the corporation register the transfer of the certificates in the name of Hall in her fiduciary capacity, and that the corporation deem Hall to have been a shareholder of record as of September 13,1984. The court ordered certain other relief designed to protect Hall’s rights as a shareholder and to preserve the corporate and financial status quo. This judgment left the question of damages open. On June 10, 1985, a joint appeal was initiated by all the defendants except Dichello, Jr. The parties thereafter requested and were granted a stay of execution of the judgment pending the resolution of this appeal. On July 11, 1985, the court rendered a second judgment denying Hall’s claim for damages and setting forth the conditions of the stay.

I

Whether the Trial Court Erred in Finding That It Had Jurisdiction Over the Plaintiff’s Action

The defendants first claim that the Superior Court’s decree violates the statutory division of jurisdiction between the Probate Court and the Superior Court. Their argument relies on three statutes: General Statutes § 45-4 which recites the general powers of Probate Courts; General Statutes § 45-265 which provides in part that “[a]ny court of probate, after the removal of any fiduciary and the appointment of a successor fiduciary, may enforce the delivery to the successor fiduciary of any estate held by the former fiduciary by virtue of his original appointment in the same manner as a court of equity might do” (emphasis added); and General Statutes § 51-164s which provides in part that “[t]he superior court shall be the sole court of original jurisdiction for all causes of action, except such actions over which the courts of probate have original jurisdiction, as provided by statute. ” (Emphasis added.)

The defendants also rely on three cases for the undoubted proposition stated in First National Bank & Trust Co. v. McCoy, 124 Conn. 111, 115, 198 A. 183 (1938), that “[t]he Superior Court cannot exercise a primary jurisdiction which by the statute is reposed in the Courts of Probate.” In that case, which involved the settlement of an executor’s account with the Probate Court, our Supreme Court, quoting Brush v. Button, 36 Conn. 292, 294 (1869) stated that: “[the Probate Court] was the proper place [for the executors] to settle their account, and by our law is the only place it can be done.” First National Bank & Trust Co. v. McCoy, supra. The Superior Court “can settle an account only on an appeal from doings of the Court of Probate and then only so far as it can without expressing a power vested exclusively in the Court of Probate.” (Emphasis added.) Id. In LaBella v. LaBella, 134 Conn. 312, 57 A.2d 627 (1948), also relied on by the defendants, the Supreme Court found that the Superior Court did not have jurisdiction in a divorce proceeding over the decision concerning custody of a child who was not issue of the marriage. Finally in Owens v. Doyle, 23 Conn. Sup. 100, 103, 177 A.2d 465 (1961), modified, 152 Conn. 199, 205 A.2d 495 (1964), the Superior Court held that the Probate Court is the only tribunal competent to decide the question of due execution of a will.

Neither these cases, nor the statutes cited above, support the defendants’ claim in this case, that either original or exclusive jurisdiction lies with the Probate Court. On the contrary, these cases make clear the limited types of actions over which the Superior Court does not exercise original jurisdiction: namely custody of a child not the issue of the marriage involved in a divorce, settlement of an executor’s or administrator’s account, and the question of due execution of a will. In defining the extent and nature of the Probate Court’s jurisdiction, these cases make it very clear that the Superior Court had jurisdiction over this case. “ ‘ “The fact that no other court has exclusive jurisdiction in any matter is sufficient to give the Superior Court jurisdiction of that matter.” ’ [State Ex Rel. Morris v. Bulkley, 61 Conn. 287, 374, 23 A. 186 (1892)].” Carten v. Carten, 153 Conn. 603, 612, 219 A.2d 711, 716 (1966).

The Probate Court, because of its limited statutory-jurisdiction, could not have had even concurrent jurisdiction with the Superior Court over any counts of the plaintiffs complaint other than the first count in which she sought delivery of the shares of stock. Hall’s claims for registration of the stock, for retrospective status as a record holder of the stock, for an order concerning a shareholders’ meeting, and for injunctive relief clearly are beyond the jurisdiction of the Probate Court. The authority of a Probate Court is “not coequal with that of the Superior Court when it is exercising its general equity powers . . . .” Phillips v. Moeller, 147 Conn. 482, 488, 163 A.2d 95 (1960). The Probate Court enjoys only a limited statutory jurisdiction and that jurisdiction “has not . . . been extended to the adjudication of complex legal questions which pertain to the management and operations of a business corporation.” Carten v. Carten, supra, 615.

The court did not err in holding that it had jurisdiction of the case and in denying the defendant DDI’s motion to dismiss and overruling its special defenses on this ground.

II

Whether the Trial Court Erred in Failing to Stay the Case Until the Plaintiff’s Status as Trustee and Executrix Had Been Finally Determined

The defendants now claim that the trial court erred in denying their motion for a stay in which they claimed that the plaintiffs action was premature because it was filed before this court determined, in the companion case of Zempsky’s Appealfrom Probate, supra, who was the appropriate fiduciary. We need pause only briefly on this issue. We note that when this action was brought, Zempsky’s appeal from the Probate Court orders which admitted the second will to probate and appointed Hall as successor fiduciary, had already been decided by the Superior Court. Zempsky had already filed the appeal in this court.

The filing of a probate appeal does nothing to impair the decree appealed from. Stevens’Appeal, 157 Conn. 576, 580-81, 255 A.2d 632 (1969); Silverstone v. Lillie, 141 Conn. 104, 107, 103 A.2d 915 (1954). “Since the appeal does not vacate the decree appealed from, . . . the dismissal of the appeal leaves the decree as it was before, in full force.” 1 Locke & Kohn, Connecticut Probate Practice § 205. Here, the Superior Court concluded that “[t]he orders and decrees of the Probate Court of April 2,1984, have not been stayed, vacated, or suspended” and that they “remain wholly effective.” Its decision was correct.

“A motion for continuance is addressed to the discretion of the trial court, and its ruling will not be overturned absent a showing of a clear abuse of that discretion.” Vossbrinck v. Vossbrinck, 194 Conn. 229, 232, 478 A.2d 1011 (1984), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 311 (1985). Because the Probate Court’s decree appointing Hall was still in effect at the time the defendants brought this action, there already was an existing determination of the plaintiff’s fiduciary status. Accordingly, the court did not abuse its discretion by denying the defendant’s motions.

We need go no further in answering this argument; the case did proceed to an adjudication on the merits, and the claim is, therefore, moot. “ ‘ “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” Reynolds v. Vroom, 130 Conn. 512, 515, 36 A.2d 22 [1944]; Phaneuf v. Commissioner of Motor Vehicles, 166 Conn. 449, 452, 352 A.2d 291 [1974]; Harkins v. Driscoll, 165 Conn. 407, 409, 334 A.2d 901 [1973]; Roy v. Mulcahy, 161 Conn. 324, 328, 288 A.2d 64 [1971]; Maltbie, Conn. App. Proc. § 21.’ ” Bridgeport Jai Alai, Inc. v. Gaming Policy Board, 3 Conn. App. 254, 256, 487 A.2d 208 (1985).

Ill

Whether the Trial Court Erred in Holding That the Plaintiff Had Complied With or Was Excused From Complying With the Statutory Prerequisites of General Statutes § 42a-8-401 and § 33-310 (d) Regarding Possession and Presentment of the Stock Certificates

The defendants claim that Hall did not comply with General Statutes § 42a-8-401 because she did not present the stock certificates to the issuer nor did she claim to have possession of the certificates. They also argue that in order to obtain a court order compelling transfer and recording of stock under General Statutes § 33-310 (d), the petitioner must be “[a] holder of shares entitled to obtain transfer of record pursuant to [General Statutes] section 42a-8-401 . . . .”

This is an unreasonable reading of the two statutes which leads to the bizarre result of allowing Zempsky, by his refusal to deliver the shares of stock to Hall, to thwart the intention of the statutes. It also overlooks the trial court’s findings. The court concluded that “Zempsky is in possession of the certificates of the fiduciary shares and he refuses to deliver possession of said certificates, although demand to do so was duly made by Hall.” The court also found that “Hall has been prevented from presenting the certificates for transfer of registration by the actions of the defendants” and that “[transfer of record of the certificates of said fiduciary shares to the plaintiff in her fiduciary capacity has been unreasonably delayed by the defendants.” On the basis of these findings, the court concluded that the plaintiff should be deemed a shareholder of record and ordered Zempsky to deliver the certificates to Hall. The judgment provided accordingly.

The court, by ordering delivery and registration, complied with both the letter and the spirit of the relevant statutes. The law does not always require a fiduciary to register formally the transfer of a decedent’s shares in order to vote them. Connecticut General Statutes § 33-311a (d). Additionally, the statutory provision on registration of securities should be “liberally construed and applied to promote [the] underlying purposes and policies” of the Uniform Commercial Code. General Statutes § 42a-l-102 (1). Those purposes and policies are explained in the Official Comments which accompany each section of the Uniform Commercial Code. In the Official Comment to the 1962 amendments to Article 8, the drafters stress that [General Statutes § 42a-8-401] is not intended to create artificial obstacles: “This section does not constitute a mandate that all preconditions must be met before the issuer registers a transfer. Conversely, it is not a prohibition upon transfers when not all preconditions are met. . . . This section is not a check list of steps the issuer must take before registering a transfer.” Official Comment to U.C.C. § 8-401 (1962).

The policy behind requiring presentment of certificated securities in the ordinary case is to protect the issuer from competing claims as to which it has no knowledge. See Danaher v. C. N. Flagg & Co., 181 Conn. 101, 109 n.3, 434 A.2d 944 (1980). It is obvious that no such condition prevails here. Here, the shares stood in the names of Zempsky and Dichello, Jr., the former cofiduciaries, and Hall, as fiduciary, had a duty to obtain a change in the registration. The court did not err in ordering the delivery of and registration of the stock certificates.

IV

Whether the Trial Court Erred in Determining That the Plaintiff Was Entitled to Be Considered a Shareholder of Record As of September 13, 1984; In Ordering the Defendants to Hold a Special Meeting of Shareholders on June 26, 1985, for the Purpose of Electing Directors; In Enjoining the Defendants, Pending Said Special Meeting of June 26, 1985, From Taking the Actions Set Forth in Its Memorandum of Decision

A trial court has the authority to fashion appropriate equitable relief; Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); and balancing the equities is a matter of the trial court’s discretion, in which it is not bound by a formula but is free to fashion relief “molded to the needs of justice.” Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 54, 492 A.2d 223 (1985). That discretion should not be interfered with on appeal unless it has been manifestly abused. Id.

The orders of the court challenged here were supported by the facts found and were carefully structured to meet the practical problems of a corporation with a fifty-fifty stock split and were well within the discretion of a court of equity. In these arguments, the defendants are merely rehashing their persistent claim that Hall is attempting to deadlock the successful DDI. The trial court clearly did not abuse its discretion.

The defendants further claim that a conflict of interest may arise between Hall’s duties as a fiduciary and her duties as an official of DDI, and accordingly, in equity, the court could not have fashioned the remedy it did. The short answer is that there is no conflict of interest. Hall as a fiduciary must vote her stocks to protect the trust beneficiaries’ interests in the corporation. This is exactly what the testator wanted. The court did not err in the orders at issue.

There is no error.

In this opinion the other judges concurred.

       The defendant John Dichello, Jr., has not joined in this appeal.

       Under General Statutes § 42a-8-102, the stocks involved in this case are “certificated securities.”

       The defendant Dichello, Jr., has not opposed Hall’s request. He is a defendant in a technical sense only since he is secretary of DDI.

       A judgment of liability only is not generally final; the appeal must wait until after the hearing in damages. Stroiney v. Crescent Lake Tax District, 197 Conn. 82, 84, 495 A.2d 1063 (1985). In this case, however, the damages sought are clearly separable from the equitable relief sought. The damages are so separate, in fact, that the lower court refused to award them, holding that the plaintiff’s request for damages was actually in the nature of a request for reimbursement of attorney’s fees incurred in the prosecution of this action. Because the nature of the damages sought here is so different from those in a liability context, and is so separable from the cause of action, this case is distinguishable from Stroiney v. Crescent Lake Tax District, supra. Accordingly, we find that the judgment appealed from is a final judgment.

       General Statutes § 45-4 provides: “general powers. Courts of probate in their respective districts shall have the power to grant administration of intestate estates of persons who have died domiciled in their districts and of intestate estates of persons not domiciled in this state which may be granted as provided by section 45-195, to admit wills to probate of persons who have died domiciled in their districts or of nondomiciliaries whose wills may be proved in their districts as provided in section 45-170, to call executors, administrators, trustees, guardians and conservators to account concerning the estates entrusted to their charge, and to make any lawful orders or decrees to carry into effect the power and jurisdiction conferred upon them by the laws of this state.”

       See General Statutes § 45-4 in footnote 5, supra.

       General Statutes § 45-265 allows a Probate Court to enforce the delivery of property “in the same manner as a court of equity might do. ” (Emphasis added.) Such language leaves no doubt that the jurisdiction involved is concurrent.

       Although the defendant James Dichello and Burton L. Zempsky joined in the brief of DDI, only DDI raised this claim in the court below.

       The appellants might have avoided the mootness question by filing a motion for stay directly with the Appellate Court pursuant to Practice Book § 3096 (4).

       General Statutes § 42a-8-401 (1) provides in pertinent part: “If a certificated security in registered form is presented to the issuer with a request to register transfer or an instruction is presented to the issuer with a request to register transfer, pledge or release, the issuer shall register the transfer, pledge or release as requested . . . .”

       So pervasive is this position, that the defendants inveigh in their briefs against certain requests Hall made during the litigation which were not even granted by the court.


author: Dupont, C. J.

text:
    Mary Ellen Rule v. Donald A. Rule
    (3455)
    Dupont, C. J., Spallone and Daly, Js.

      Argued November 20, 1985
    decision released March 25, 1986

      Alfred J. Garofolo, for the appellant (defendant).

      Mark Shapera, for the appellee (plaintiff).
   Dupont, C. J.

The defendant, has appealed from a judgment of the trial court which upheld the enforceability of a Massachusetts judgment in Connecticut pursuant to General Statutes § 46b-71. The only issue raised by this appeal is whether the trial court erred in holding that the Massachusetts judgment was one in which the defendant had “entered an appearance,” as required by General Statutes § 46b-70.

The facts are not in dispute. The marriage of the parties was dissolved by a judgment of divorce nisi rendered in 1978 by the Massachusetts Probate Court. This judgment was modified in 1979 by agreement of the parties. In 1982, the plaintiff filed a complaint for contempt against the defendant to collect child support payments in arrears. The defendant’s attorney filed a formal appearance in the contempt action. The parties agreed to a continuance on the plaintiff’s complaint for contempt in order to consolidate the hearing in that action with a hearing on the defendant’s pending complaint for modification of child support payments. An evidentiary hearing was held with the defendant and his counsel both present. The court ordered the defendant to pay $90 per week child support. Another hearing was held on March 21, 1983, with both parties present and represented by counsel, wherein the court deferred the payment of those child support payments in arrears until the youngest child attained the age of eighteen. On January 18, 1984, the court rendered a judgment of contempt against the defendant, requiring him to pay all of the child support arrearage “forthwith.” On that same date, prior to the rendering of the judgment, the defendant’s attorney successfully moved to withdraw from the case. The defendant was not present. It is unclear whether any hearing relevant to the contempt complaint was held subsequent to the withdrawal of the defendant’s counsel.

The plaintiff sought enforcement of this contempt judgment in Connecticut. The trial court adopted the Massachusetts judgment pursuant to General Statutes § 46b-71. The defendant moved to set aside the judgment, claiming that his counsel withdrew her appearance prior to the rendering of the Massachusetts contempt judgment and, therefore, it was not one in which “both parties [had] entered an appearance” as required by General Statutes § 46b-70.

General Statutes § 46b-70 defines a foreign matrimonial judgment as “any judgment, decree or order of a court of any state in the United States in an action for [divorce or child custody and support] in which both parties have entered an appearance.” The statute is an appropriate vehicle to enforce a judgment of contempt for failure to comply with a matrimonial judgment. See, e.g., Van Wagner v. Van Wagner, 1 Conn. App. 578, 474 A.2d 110 (1984). The requirement of the entry of an appearance by both parties is a “threshold requirement for enforcement” pursuant to the statute. Morabito v. Wachsman, 191 Conn. 92, 101, 463 A.2d 593 (1983). Even a one time special appearance in another state to contest jurisdiction is sufficient to allow enforcement in Connecticut of a judgment subsequently rendered for support arrearages obtained in the other state. Id. The statutory language reflects the intent of the legislature to ensure that both parties have actual notice of an out of state proceeding, and to preclude adoption of foreign judgments obtained by a default in appearance. See id., 101 n.9; see also General Statutes § 52-604. Even states with statutes that specifically preclude enforcement of default judgments will enforce judgments obtained by default where a party has defaulted in pleading after an initial appearance. Paden v. Warnke, 110 Misc. 2d 61, 441 N.Y.S.2d 575 (1981).

The defendant does not argue that he did not enter an appearance in the Massachusetts action. He argues that at the time the Massachusetts judgment of contempt was rendered, the initial appearance had been withdrawn because his counsel had been allowed to withdraw her appearance prior to that judgment’s being rendered.

“The term ‘appearance’ is used [to] designate the overt act by which one against whom suit has been commenced submits himself to the court’s jurisdiction . . . .”5 Am. Jur. 2d, Appearance § 1. A party may make a formal appearance in an action by giving written notice of his appearance; see Practice Book § 64; Mass. R. Civ. Proc. § 11 (a); or by “implication from the defendant’s seeking, taking, or agreeing to take some step or proceeding in the cause, beneficial to himself or detrimental to the plaintiff . . . or from some act done with the intention of appearing and submitting to the court’s jurisdiction.” 5 Am. Jur. 2d, Appearance § 14; see Beardsley v. Beardsley, 144 Conn. 725, 729-30, 137 A.2d 752 (1957); Buckley v. John, 314 Mass. 719, 721-22, 51 N.E.2d 317 (1943). The defendant in this case clearly intended to submit himself to the court’s jurisdiction by filing a formal appearance in accordance with the Massachusetts rules of civil procedure and by participating extensively in prior hearings in the contempt proceeding. “The withdrawal by [his] attorney of [her] own appearance does not have the effect of withdrawing [her] client’s appearance . ...” 6 C.J.S., Appearances § 57; see Conley v. Conley, 324 Mass. 530, 531 n.1, 87 N.E.2d 153 (1949); Harvey v. Fiduciary Trust Co., 299 Mass. 457, 465, 13 N.E.2d 299 (1938). While the effect of the defendant’s appearance could have been negated by leave of the Massachusetts Probate Court; see Harvey v. Fiduciary Trust Co., supra, 465; no such motion was made.

The purpose of General Statutes § 46b-70 and § 46b-71 is to prevent a defendant from avoiding the execution of a valid and enforceable judgment by fleeing the jurisdiction. See 20 S. Proc., Pt. 7, 1977 Sess., pp. 2907-2911; 20 H.R. Proc., Pt. 7, 1977 Sess., pp. 2942-44. The defendant does not challenge the validity of the Massachusetts judgment. Even though the defendant’s counsel was allowed to withdraw from the case prior to the rendering of the judgment and the defendant was not present at that time, the defendant is deemed to have notice of the proceedings. The defendant is charged with the knowledge of his counsel regarding when judgment was to be rendered in the contempt proceeding. See Levin v. Berley, 728 F.2d 551 (1st Cir. 1984). Additionally, the defendant’s attorney was required to give the defendant notice of the motion to withdraw. Mass. R. Civ. Proc. §§ 6 (c), 11 (c). The defendant’s brief does not allege that he was denied proper notice or a fair opportunity to be heard. In fact, the defendant’s appellate counsel stated at oral argument before this court his belief that the defendant was aware of the trial counsel’s intent to withdraw. It was the defendant’s responsibility to take whatever steps he thought necessary to protect his interest. Any failure by the defendant to protect his interest does not preclude enforcement of a valid judgment under General Statutes § 46b-71.

There is no error.

In this opinion the other judges concurred.

       General Statutes §§ 46b-70 through 46b-75 concerns the enforcement of foreign matrimonial judgments. General Statutes § 46b-70 defines a foreign matrimonial judgment as “any judgment, decree or order of a court of any state in the United States in an action for . . . dissolution of marriage, for the custody, care, education, visitation, maintenance or support of children or for alimony, support or the disposition of property of the parties to an existing or terminated marriage, in which both parties have entered an appearance.”

       In response to a request for a further articulation of its decision, the trial court adopted all of the facts as set forth in affidavits of the parties.


author: Spallone, J.

text:
    State of Connecticut v. Dana P. Aspinall
    (2886)
    Hull, Spallone and Bieluch, Js.

      Argued December 4, 1985
    decision released March 25, 1986

      Richard R. Brown, with whom, on the brief, was Michael E. Grossman, for the appellant (defendant).

      Jeffrey L. Kline, special assistant state’s attorney, with whom was CarlSchuman, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment of his conviction, after a jury trial, of two counts of selling cocaine in violation of General Statutes § 19-480 (a). The sales were made to Officer Jeffrey Hotsky and occurred on January 27,1981, and February 2,1981. At that time and for some time thereafter, Hotsky was acting in his capacity as an undercover officer for the Connecticut Statewide Narcotics Task Force. A warrant for the defendant’s arrest was applied for and issued on October 21,1982. The defendant was arrested on the following day, October 22, 1982. At the time of the illegal sales, the defendant was employed at the Village Vette Shop in Glastonbury. The sales occurred at the defendant’s place of employment.

After hearings were held and before trial, the court denied the defendant’s two motions to dismiss. The first motion claimed a violation of due process because of the long lapse of time between the dates of the alleged offenses and the issuance of the warrant and arrest. The second motion claimed that the statute under which the defendant was charged was unconstitutionally vague, ambiguous and unclear in that subsections (a) and (b) of that statute prescribed different penalties for the same offense.

Following a trial, the jury found the defendant guilty of both counts. The court sentenced the defendant to imprisonment for a term of three years on each count to run consecutively for an effective sentence of six years. Subsequently, the court vacated its prior sentence and resentenced the defendant to imprisonment on each count for a term of not less than six years nor more than twelve years to run concurrently for an effective sentence of not less than six years nor more than twelve years.

The defendant claims that the court erred (1) in denying the defendant’s motion to dismiss because of the delay between the alleged commission of the crimes and the arrest, (2) in denying the defendant’s further motion to dismiss on the ground that General Statutes § 19-480 (a) and (b) violated the defendant’s state and federal constitutional rights of equal protection and due process of law because of vagueness, ambiguity and lack of clarity, and (3) in failing to allow evidence of a third party’s involvement with the crime. He also claims that he received ineffective assistance of counsel in violation of both his state and federal constitutional rights. The defendant’s original preliminary statement of issues, filed December 29, 1983, contained a claim that the trial court erred when it resentenced the defendant to a longer term of imprisonment than that provided in the sentence which had been vacated. This issue, however, has not been briefed and is deemed to have been abandoned. State v. Samaha, 180 Conn. 565, 565 n.1, 430 A.2d 1290 (1980); Deteves v. Deteves, 2 Conn. App. 590, 590 n.1, 481 A.2d 92 (1984).

We have the advantage of the trial court’s clear and authoritative memoranda of decision with respect to the defendant’s first two claims of error. The court’s memoranda reflect well reasoned, logical and rational responses to the defendant’s motions. With regard to the first motion, the court found that the delay caused no prejudice to the defendant. To establish that a prearrest delay has caused a denial of the right to due process of law, the defendant must establish a specific showing of prejudice. United States v. Marion, 404 U.S. 307, 324, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971). Mere allegations of potential prejudice or dimmed memory are insufficient. State v. L’Heureux, 166 Conn. 312, 322, 348 A.2d 578 (1974); see State v. Morrill, 197 Conn. 507, 528, 498 A.2d 76 (1985). We cannot say that the trial court was clearly erroneous in finding that there was no showing by the defendant of any actual significant prejudice caused by the delay. State v. Hodge, 153 Conn. 564, 571, 219 A.2d 367 (1966).

The defendant’s second claim of error, that General Statutes (Rev. to 1981) § 19-480 (a) and (b) are unconstitutional because they proscribe the same crime, but provide different penalties for violation, cannot be sustained. Prior to trial, the defendant moved to dismiss the information on the ground that subsections (a) and (b) of General Statutes (Rev. to 1981) § 19-480 provide different penalties for the same offense and, therefore, violated the defendant’s constitutional rights. Subsection (a) reads in pertinent part: “Any person who . . . sells . . . any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned . . . .” The pertinent language employed in subsection (b) of the statute is as follows: “Any person who . . . sells . . . any controlled substance, except a hallucinogenic substance other than marihuana, or a narcotic substance except as authorized in this chapter, may, for the first offense, be fined not more than one thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned . . . .” The defendant’s claim is based on the placement of the comma after the word “marihuana” in subsection (b) which specifically, and merely as a matter of punctuation, is troublesome. As the trial court noted, however, and with this we entirely agree, the statute must be examined “with more than a grammarian’s interest.”

To begin with, the defendant was charged, tried, convicted and sentenced under § 19-480 (a) without reference at any time to § 19-480 (b). Whatever reference was made to subsection (b) came about because of the defendant’s motion to dismiss. Subsection (b) was never a part of the case. Nevertheless, the trial court correctly applied the principles of law that govern the construction of statutes. Where, as here, a question of constitutionality is raised, the court must presume the statute’s validity and sustain the legislation unless it clearly violates constitutional principles. If there is a reasonable ground for upholding the legislation, courts assume that the legislative body intended to place it upon that ground and was not motivated by some improper purpose. State v. Gordon, 143 Conn. 698, 703, 125 A.2d 477 (1956). No statute should be held void for uncertainty if a practicable or sensible effect may be given it. State v. Andrews, 108 Conn. 209, 213, 142 A. 840 (1928). Additionally, a penal statute may survive a vagueness attack solely upon a consideration of whether it provides fair warning. State v. Pickering, 180 Conn. 54, 61-62, 428 A.2d 322 (1980); see State v. Tyson, 195 Conn. 326, 332, 487 A.2d 1091 (1985); State v. Weber, 6 Conn. App. 407, 416, 505 A.2d 748 (1986).

By definition contained in General Statutes § 19-443, hallucinogens, narcotics and marihuana are all included in the general term “controlled substance.” General Statutes § 19-443 (9). Cocaine is specifically categorized as a “narcotic substance.” General Statutes § 19-443 (30). The essence of the defendant’s claim is that he could be prosecuted under § 19-480 (a) or (b) for the charge of selling cocaine and, therefore, would be subject to different penalties. There is no doubt that, under the circumstances in this case, the defendant was properly charged with a violation of § 19-480 (a) which forbids the sale of all controlled substances which are hallucinogens, except marihuana, and unauthorized narcotics, which by definition includes cocaine. On the other hand, the defendant, upon a proper construction of the statute, cannot under the circumstances in this case, be charged under § 19-480 (b) which proscribes the sale of a controlled substance including marihuana, but excluding other hallucinogens and unauthorized narcotic substances. An analysis of the pertinent statute indicates a pattern by the legislature of arranging and dividing the various sections into subsections which obviously reflects a legislative intent to list first the more onerous substances along with an appropriate heavier penalty followed, in subsequent subsections, by what the legislature deemed to be less onerous substances along with appropriate lesser penalties. This pattern is ascertainable throughout the pertinent sections of the chapter.

We hold that the trial court correctly construed § 19-480 (a) and (b) and we cannot find error in the court’s conclusion that the statutes were not ambiguous as they pertained to the proscribed conduct, that the defendant was provided fair warning, and that the defendant’s right to equal protection of the law was not violated. A misplaced or superfluous comma should never be interpreted in a manner that would thwart and frustrate the public policy expressed in the statute.

The defendant’s third claim of error is founded on the right of every defendant to give evidence concerning a third party’s involvement with the crime as long as there is some evidence which directly connects the third party with the crime. Siemon v. Stoughton, 184 Conn. 547, 555, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974).

There was evidence submitted in this case that another person named Dana, whose height and hair color resembled the defendant’s, and whose last name was McGann, was employed at the same place and at the same time as the defendant. McGann’s vehicle was alleged to have been at the premises when a drug transaction occurred and the police department carried McGann’s name in its official reports and on a tape recording case used by them during the investigation. The court allowed this evidence to go to the jury but, on the ground of irrelevancy, would not allow the defendant to question a witness as to whether McGann tried to sell the witness cocaine. The defendant argues that by ruling out this question, the court prevented him from establishing the fact that McGann had a propensity to sell cocaine which would then provide the jury with sufficient evidence to connect someone other than the defendant with the crime. He claims that this is particularly so in this case, where there was no evidence, prior to these sales, that the defendant had a propensity to sell cocaine. The state argues that Officer Hotsky positively identified the defendant as the Dana that sold him the cocaine. The defendant counters that the identification was made by photo some twenty months after the incidents occurred and that the question of identification was the paramount issue in this case.

The defendant urges upon us the proposition that the evidence offered directly connected McGann with the crime and provided more than a mere possible ground or suspicion against him. The trial court by its ruling, however, concluded to the contrary, when it excluded any testimony as to McGann’s propensity to sell cocaine as irrelevant.

Our Supreme Court has stated: “ ‘Ordinarily, evidence concerning a third party’s involvement is not admissible until there is some evidence which directly connects that third party with the crime.’ (Emphasis added.) State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977). ‘The defendant can always show that some other person and not the defendant committed the crime; however, it is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.’ State v. Renteria, 21 Ariz. App. 403, 404, 520 P.2d 316 (1974); see People v. Hayden, 30 Cal. App. 3d 446, 106 Cal. Rptr. 348 (1973); State v. Umfrees, 433 S.W.2d 284 (Mo. 1968); State v. Shinn, 238 N.C. 535, 78 S.E.2d 388 (1953); see also People v. Edmond, 200 Cal. App. 2d 278, 19 Cal. Rptr. 302 (1962); State v. Larsen, 91 Idaho 42, 47, 415 P.2d 685 (1966); State v. McDowell, 301 N.C. 280, 271 S.E.2d 286 (1980). The trial court has broad discretion in ruling on questions of relevancy. State v. Runkles, 174 Conn. 405, 413, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); State v. Smith, 174 Conn. 118, 122, 384 A.2d 347 (1977).” State v. Giguere, supra, 405-406.

No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to reason and judicial experience. State v. Periere, 186 Conn. 599, 607, 442 A.2d 1345 (1982); Eason v. Williams, 169 Conn. 589, 591, 363 A.2d 1090 (1975). The trial judge must consider many factors in ruling on relevancy. The court must determine whether the proffered evidence is corroborative or coincidental, whether it is probative or tends to obfuscate, and whether it clarifies or obscures. In arriving at its conclusion, the trial court is in the best position to view the evidence in the context of the entire case, and we will not intervene unless there is a clear abuse of the court’s discretion. On appeal, we are limited in our review to a determination of whether, under the circumstances of the case, in exercising its broad discretion, the trial court could legally act as it did, and not whether we, under the same circumstances, would make the same ruling. See Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972); Pischitto v. Waldron, 147 Conn. 171, 175, 158 A.2d 168 (1960). We cannot say, under the circumstances in this case, that the trial court, when it refused to admit evidence tending to show that McGann sold cocaine, abused its discretion or acted illegally or against reason or logic.

The defendant’s final claim is that he did not receive effective assistance of counsel. It is undisputed that the constitutional right of counsel to which every person accused of a crime is entitled is a right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); State v. Rivera, 196 Conn. 567, 569, 494 A.2d 570 (1985); State v. Gregory, 191 Conn. 142, 143, 463 A.2d 609 (1983); State v. Scielzo, 190 Conn. 191, 205-206, 460 A.2d 951 (1983). When confronted with a claim of ineffective assistance of counsel, we are placed in a position where we are viewing the performance of trial counsel after the fact with limited hindsight. We are further hindered because, generally, the record on appeal is devoid of objective factual evidence by which we can measure and evaluate the performance of counsel. Trial counsel’s motivation and reasoning governing his or her acts are highly subjective and are not readily ascertainable by us in the absence of a trial court hearing where the facts and circumstances of the case may be focused upon and illuminated. What may facially appear to us as a dereliction by counsel might in the context of the trial be a proper or purposeful tactic.

To expedite the resolution of ineffective counsel claims before appeal, our Supreme Court has very recently established that “[i]t is preferable that all of the claims of ineffective assistance, those arguably supported by the record as well as others requiring an evidentiary hearing, be evaluated by the same trier in the same proceeding. A defendant should not be required to await the outcome of his appeal upon other issues before pursuing his claim of incompetent counsel. If his claim is meritorious, he may often obtain relief in the trial court before his appeal on other issues can be heard, thus mooting such an appeal.” State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, U.S. , 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986).

In Leecan, the Supreme Court refused to review “even the portion of the defendant’s ineffective assistance claim that he contended] [was] adequately supported by the record.” Id., 542. The court concluded that the defendant’s ineffective assistance claim should be resolved as a totality after an evidentiary hearing in the trial court, and not in piecemeal fashion. Id.

Because of this modification of appellate procedure in regard to ineffective assistance claims, we will not, at this time, review this claim of the defendant. See Sutton v. Warden, 6 Conn. App. 518, 520-21, 506 A.2d 566 (1986).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 19-480 is now § 21a-277.

       General Statutes § 19-443 is now § 21a-240.

       Chapter 359 of the Connecticut General Statutes entitled “Dependency-Producing Drugs,” is now Chapter 420b.