author: DUPONT, C. J.

text:
    STATE OF CONNECTICUT v. MICHAEL MARSALA
    (14952)
    Dupont, C. X, and O’Connell and Freedman, Js.

      Argued September 19
    officially released November 12, 1996

      Susan Brown, supervisory assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, deputy assistant state’s attorney, with whom, on the brief, were Mary M. Gal-vin, state’s attorney, and Gerard F. Esposito, assistant state’s attorney, for the appellee (state).
   DUPONT, C. J.

The defendant, Michael Marsala, appeals from the judgment of conviction, rendered after a jury trial, of twenty-five counts of harassment in the second degree in violation of General Statutes § 53a-183 (a) (3). The trial court sentenced the defendant to twelve consecutive three month sentences on the first twelve counts and entered an unconditional discharge as to the remaining thirteen counts for a total effective sentence of thirty-six months consecutive to a sentence the defendant was already serving. On appeal, the defendant claims (1) that his conviction was based on insufficient evidence, (2) that the trial court should not have denied his motion for severance, (3) that § 53a-183 is unconstitutionally vague and overbroad, and (4) that the jury was improperly instructed on the need for unanimity as to the specific actus reus. We affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. Between April 4 and June 26,1994, the defendant made at least twenty-five telephone calls to the victim. Many of the calls were made during early morning hours. On April 4, there were four calls made in the thirty-five minutes between 6:45 a.m. and 7:20 a.m. On June 17 and June 19, the defendant made four and five calls, respectively, to the victim. Most of the telephone calls concerned the victim’s daughter, Tamra. The contents of the calls varied. One of the calls, made at 5 a.m., wished Tamra a happy birthday, while another claimed that “the Bridgeport police . . . don’t think very much of you and your slut daughter. They know her from the streets. In fact even quite a few of them have had her.” During several of the calls, the victim asked the caller to stop calling. The victim additionally threatened to call the police. On the advice of her attorney, the victim allowed her answering machine to pick up and record most of the later calls.

The victim positively identified the defendant as the caller in each of the telephone calls about which she testified. The victim testified that she had met the defendant in May, 1992, while she was visiting her daughter in a hospital. The victim had spoken with the defendant for ten or fifteen minutes on that occasion. The victim stated that she spoke to the defendant between ten and twelve times during the two years between meeting him and when the telephone calls started. She indicated that she was familiar with his voice from these conversations. Additionally, two months before the trial, the victim listened in person to the defendant’s five voice for about seven minutes and identified it as the voice she heard on the telephone.

I

The defendant’s insufficiency of evidence claim has two prongs. The first is that there was insufficient evidence to identify him as the caller, and the second, that there was insufficient evidence to prove that the caller’s intent was “to harass, annoy or alarm.”

“In reviewing [a] sufficiency [of the evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Mejia, 233 Conn. 215, 223-24, 658 A.2d 571 (1995).” (Citation omitted; internal quotation marks omitted.) State v. DeJesus, 236 Conn. 189, 195, 672 A.2d 488 (1996).

The defendant claims that his identity as the caller has not been established because the victim’s testimony was the only evidence produced to show the identity of the caller. The issue of the caller’s identity is one of fact properly to be resolved by the jury. State v. Jones, 234 Conn. 324, 333, 662 A.2d 1199 (1995). The victim testified that she positively identified the defendant as the caller on each call; she recognized the caller’s voice as that of the defendant from meeting him two years earlier and from prior telephone conversations with him; and she had been able to identify the defendant as the caller in a “voice-up.” The victim additionally testified that the content of most of the calls concerned her daughter, who knew the defendant, and that when she went to visit her daughter on one of the days he had telephoned, the defendant was at her daughter’s address, as he had said he would be. An attorney, hired by the victim to try to stop the defendant from calling, testified that the defendant had called him in response to the letter the attorney had sent to him. The jury reasonably could have concluded beyond a reasonable doubt, therefore, from the cumulative effect of both the circumstantial and direct evidence, that it was the defendant who repeatedly had made telephone calls to the victim.

The second prong of the defendant’s insufficiency of evidence claim is closely related to the defendant’s severance claim. Because our reasoning as to severance also controls the insufficiency of evidence claim, we will consider them together in the following part.

II

The defendant claims that the trial court should have granted his motion to sever the twenty-five counts of harassment. The defendant asserts that the joinder of the claims is unduly prejudicial because the jury is likely to aggregate the evidence from each count of harassment, thereby consolidating all the evidence and convicting the defendant on the totality of the evidence instead of keeping the evidence separate and distinct. In addition, the defendant argues that severance should have been granted because he wanted to testify as to counts one through eleven but not as to the rest of the counts. Finally, the defendant argues that the counts should have been severed because a jury considering multiple charges against the defendant may consider him a “bad person” who must have done something wrong and not deliberate over the different counts against him. The defendant further asserts that the jury had insufficient evidence to convict him on each individual count of harassment.

“General Statutes § 54-57 and Practice Book § 829 authorize a trial court to order a defendant to be tried jointly on charges arising separately. In deciding whether to sever informations joined for trial, the trial court enjoys broad discretion, which, in the absence of manifest abuse, an appellate court may not disturb. . . .The defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Citations omitted; internal quotation marks omitted.) State v. Herring, 210 Conn. 78, 94-95, 554 A.2d 686, cert. denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989).

“Because of its prejudicial impact, evidence of prior acts of misconduct is inadmissible merely to show a defendant’s bad character or tendency to commit criminal acts. . . .” (Citations omitted.) State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987). “An exception to the rule prohibiting the substantive admission of a defendant’s prior criminal offenses in the trial of another case is when the collateral crime tends directly to prove the commission of the principal crime, or the existence of any element of the principal crime .... Consistent with this rule, the state may introduce evidence of other crimes to establish a defendant’s intent, identity, malice, motive or system of criminal activity.” (Citations omitted; internal quotation marks omitted.) State v. Boscar-ino, 204 Conn. 714, 722, 529 A.2d 1260 (1987).

“Where evidence of one incident can be admitted at the trial of [another incident], separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily be substantially prejudiced by joinder of the offenses for a single trial.” State v. Pollitt, supra, 205 Conn. 68; State v. King, 35 Conn. App. 781, 791, 647 A.2d 25 (1994), aff'd, 235 Conn. 402, 665 A.2d 897 (1995).

We agree with the trial court that joinder of the twenty-five claims was proper because evidence relating to each count could have been used in a trial of each of the other counts to prove the identity of the defendant, the intent of the defendant, and to demonstrate a common scheme. See State v. King, supra, 35 Conn. App. 791. “To be relevant on the issue of identity or common scheme, the other crime charged must be ‘sufficiently unique to warrant a reasonable inference that the person who performed one misdeed also did the other.’ State v. Ibraimov, 187 Conn. 348, 354, 446 A.2d 382 (1982). The similarities connecting the crimes need not be so unique as to constitute ‘signature crimes.’ See State v. Pollitt, supra, 205 Conn. 69-70. Rather, the features may be of substantial but lesser distinctiveness which, if considered separately, would be insufficient to raise an inference, but when taken together yield a distinctive combination. State v. Jones, 205 Conn. 638, 661, 534 A.2d 1199 (1987).” State v. King, supra, 791.

In this case, a single victim received more than twenty telephone calls she identified as having been made by the same man. Although the contents of the calls were not identical, the victim was able to identify the defendant as the caller each time. The testimony that the victim asked the defendant during several calls not to call again would have been admissible on later counts to demonstrate that the calls were unwanted, and to show that the later calls were intended to annoy or alarm. The fact that there were twenty-five calls would have been relevant to showing a common plan or scheme to harass, annoy or alarm.

Even if evidence of the other calls would not have been admissible at each individual trial of twenty-five counts, we would still conclude that joinder of the twenty-five counts was proper. The factors to be considered in determining whether severance is necessary include whether the charges involve discrete, easily distinguishable factual scenarios, whether one or more of the counts alleges brutal or shocking conduct by the accused, which would prejudice the defendant as to all the charges, or whether the trial is long or very complex. State v. Chance, 236 Conn. 31, 42, 671 A.2d 323 (1996).

Severance is usually not necessary if the charges against a defendant are distinguishable. Here, each count referred to a separate telephone call, each on a given date, at a given time. The victim was able to testify to the contents and circumstances of each telephone call individually. “Where the state’s orderly presentation of evidence has prevented confusion of the jury and has enabled the jurors to consider the evidence relevant to each offense separately and distinctly, we will not conclude that the trial court has manifestly abused its discretion in denying the defendant’s motion for severance. State v. Pollitt, [supra, 205 Conn. 68].” State v. Cain, 25 Conn. App. 503, 515, 596 A.2d 449 (1991), aff'd, 223 Conn. 731, 613 A.2d 804 (1992). The trial court’s instructions to the jury emphasized that “these are twenty-five separate and distinct alleged incidences” that the jury must consider individually. The court cautioned the jury not to aggregate the evidence and not to allow its decision on one count to influence its decision on the other counts.

The second factor of Chance, whether the crimes were violent or brutal, is disposed of easily. Telephone calls, while annoying and unwanted at times, cannot usually be characterized as violent or brutal.

The trial’s length and complexity, the third factor, is also resolved in the state’s favor. The trial lasted two days, there were three witnesses and no exhibits. See State v. Jennings, 216 Conn. 647, 659-60, 583 A.2d 915 (1990) (five day trial with fourteen witnesses and twenty-eight exhibits of short duration and evidence not complex); State v. Herring, supra, 210 Conn. 97 (no undue duration or complexity where eight days of testimony by twenty-three witnesses); but see State v. Boscarino, supra, 204 Conn. 723-24 (ten weeks of testimony with fifty-five witnesses constituted undue duration and complexity). Further, as previously stated, the evidence was presented in an orderly fashion so as to mitigate any potential complexity and risk of juror confusion. See State v. Jennings, supra, 660.

The defendant claims that the counts should have been severed because he wanted to testify as to some of the counts but not as to others. There is no need for severance of claims unless a defendant “ ‘makes a convincing showing that he has both important testimony to give concerning [some counts] and [a] strong need to refrain from testifying on [others]. In making such a showing, it is essential that the defendant present enough information—regarding the nature of the testimony he wishes to give on [some counts] and his reasons for not wishing to testify on [others]—to satisfy the court that the claim of prejudice is genuine and to enable it intelligently to weigh the considerations of “economy and expedition in judicial administration” against the defendant’s interest in having a free choice with respect to testifying.’ ” State v. Schroff, 198 Conn. 405, 409, 503 A.2d 167 (1986), quoting Baker v. United States, 401 F.2d 958, 977 (D.C. Cir. 1968), cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384 (1970); see also State v. Chance, supra, 236 Conn. 46. The defendant here has failed to give any indication whatsoever as to the reason he wanted to testify as to some counts but not others. Further, the defendant never disclosed the substance of his expected testimony. This lack of information has deprived the court of the ability to determine whether his claim of prejudice was genuine.

There is a clear presumption in favor of the consolidation of charges, and against severance. State v. Chance, supra, 236 Conn. 38. We conclude that the joinder of the twenty-five counts of harassment did not result in substantial injustice and that the defendant has not established that the trial court manifestly abused its discretion by refusing to sever the counts.

The defendant claims that there was insufficient evidence to prove his intent in each count of harassment individually. The defendant claims that “the calls in and of themselves were content neutral; they provided information to the recipient of the calls and nothing more.” Therefore, the defendant argues, the state has not proved the defendant’s intent in making the telephone calls. Because we cannot know with certainty the defendant’s intent, we must infer it from the reaction of the victim and the circumstances of each call. See State v. Tomasko, 238 Conn. 253, 257, 681 A.2d 922 (1996). The jury could infer that the defendant’s intent was to harass, annoy or alarm from the evidence that eight of the calls came before 8 a.m., that the victim repeatedly asked the defendant to stop calling, and that the defendant told the victim things about her daughter that were confidential. Such evidence would be cross admissible on the different claims, and, consequently, the jury had sufficient evidence to infer beyond a reasonable doubt the defendant’s intent.

Ill

The defendant next claims that § 53a-183, harassment in the second degree, is unconstitutionally void for vagueness and overbroad. The defendant admits that this claim was not raised at trial but maintains that it should be reviewed pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We agree with the defendant that the record is adequate to review the alleged claim of unconstitutionality under the standard set forth in State v. Indrisano, 228 Conn. 795, 800, 640 A.2d 986 (1994). Indrisano states: “To enable us to review a claim that a statute is facially vague, the record needs to reflect only the fact that the defendant was convicted under the statute in question. To enable us to review a claim that a statute is vague as applied, the record must further reflect the conduct that formed the basis of the defendant’s conviction.” Id. Although the issue passes the two initial conditions of Golding, the defendant has failed to brief this issue adequately. He has not analyzed the vagueness claim sufficiently nor has he related any of the facts of this case to an analysis of existing case law. See State v. Miranda, 41 Conn. App. 333, 338, 675 A.2d 925, cert. granted on other grounds, 237 Conn. 932, 677 A.2d 1372 (1996); State v. Mozell, 37 Conn. App. 574, 579-80, 657 A.2d 686, cert. denied, 234 Conn. 910, 660 A.2d 355 (1995); State v. Merritt, 36 Conn. App. 76, 97, 647 A.2d 1021 (1994), appeal dismissed, 233 Conn. 302, 659 A.2d 706 (1995) (certification improvidently granted); State v. Yopp, 35 Conn. App. 740, 750, 646 A.2d 298 (1994); see also Practice Book § 4064C. We, therefore, do not review the issue.

IV

The defendant claims that the trial court improperly failed to instruct the jury members that they must be “unanimous as to the defendant’s actus reus.” The defendant’s argument is that the jury should have been instructed that there must be unanimity as to whether the defendant’s intent was to harass, or to annoy, or to alarm the victim. The defendant is attempting, therefore, to distinguish an intent to harass from an intent to annoy or from an intent to alarm. In situations where “the alternatives of the mens rea [intent] component give rise to the same criminal culpability, it does not appear critical that the jury may have reached different conclusions regarding the nature of the defendant’s intent if such differences do not reflect disagreement on the facts pertaining to the defendant’s conduct.” State v. Suggs, 209 Conn. 733, 763, 553 A.2d 1110 (1989). Here, the precise nature of the defendant’s intent does not implicate any lack of unanimity regarding the defendant’s conduct.

The conduct of the defendant, if the testimony of the victim was believed, was not in dispute, and that testimony did not permit significant disagreement among the jurors as to what the defendant did. See State v. Flynn, 14 Conn. App. 10, 39, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Furthermore, a trial court need not instruct a jury that it must be unanimous as to at least one of two or more alternative ways of committing the same crime before it may find a defendant guilty unless (1) the alternative acts with which the defendant has been charged are conceptually distinct; and (2) the state has presented evidence to support each of the alternative acts with which the defendant has been charged. State v. Tucker, 226 Conn. 618, 646, 629 A.2d 1067 (1993). A jury need not decide which of two statutorily prohibited ways were used to commit a crime if the two ways are practically indistinguishable. Id., 647. Although the trial court defined harass, annoy and alarm separately, it is clear that the words have conceptually similar meanings. See id., 646 (no conceptual distinction between use of force and threats to use force); State v. Thomas, 19 Conn. App. 44, 45-46, 560 A.2d 486 (1989) (impairment of minor’s health and of minor’s morals not conceptually distinct).

There is no conceptual distinction among acts intended “to harass,” “to annoy,” and “to alarm,” and no instruction on unanimity of verdict as to them was necessary.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was originally charged with twenty-seven counts of harassment, but the trial court, directed a judgment of acquittal on two counts because the state produced no evidence on those two counts.

       General Statutes § 53a-183 (a) provides in relevant part: “A person is guilty of harassment in the second degree when ... (3) with intent to harass, annoy or alarm another person, he makes a telephone call, whether or not a conversation ensues, in a manner likely to cause annoyance or alarm.”

       General Statutes § 54-57 provides: “Whenever two or more cases are pending at the same time against the same party in the same court for offenses of the same character, counts for such offenses may be joined in one information unless the court orders otherwise.”

       Practice Book § 829 provides: “The judicial authority may, upon its own motion or the motion of any party, order that two or more informations, whether against the same defendant or different defendants, be tried together.”

       The testimony establishes that all of the telephone calls, including the first one, were not made in a vacuum. The calls were made in the context of the victim’s prior knowledge of the defendant and of her daughter’s opinion of the defendant. The jury, during deliberations, requested that the first ten minutes of the victim’s testimony be replayed for them. It is in the early part of this testimony that the victim discusses her daughter’s relationship with the defendant.
      “Q. Now, your daughter Tamra, does she have a relationship with Mr. Marsala? “A. They knew one another.
      “Q. Can you give us some of the circumstances of their . . . how they got to know each other?
      “A. Well, my daughter is a drug addict, presently in recovery. They met on the streets down there. . . .
      “Q. And if you can, I don’t know if you can or not, how would you describe your daughter’s relationship with Mr. Marsala?
      “A. She didn’t like him. She was afraid of him.”
      The victim testified that the defendant, in the first telephone call, told her, “ ‘so your daughter is in a halfway house in Bridgeport, the Mary Magdalene House,’ and I said, ‘how do you know that?’ He said, ‘she called me,’ and I said, ‘No, I don’t believe that. She doesn’t want any part of you. Leave her alone, stop calling me.’ ”
      Knowing the victim’s daughter’s history with the defendant, the jury could reasonably have believed that the defendant’s intention in making this call was to alarm the victim with his knowledge of her daughter’s whereabouts.

       The victim’s daughter was residing in a halfway house, the location of which was confidential. The defendant indicated in the calls that he knew where she was and had seen her there.

       Under Golding, “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.” State v. Golding, supra, 213 Conn. 239-40.

       Because it is difficult to hypothesize about a case without a record that reflects the statute of which a defendant was convicted or without a record that reflects a defendant’s conduct, it appears that State v. Indrisano, supra, 228 Conn. 800, supersedes the decision of State v. Santiago, 218 Conn. 483, 485, 590 A.2d 434 (1991). Santiago held that “the failure of the defendant to raise the constitutionality of [a statute] at trial leaves the record inadequate for a fair consideration of whether the statute was unconstitutionally applied to the circumstances . . . .” State v. Santiago, supra, 485. Indrisano also affects State v. Pitt, 28 Conn. App. 825, 612 A.2d 60, cert. denied, 224 Conn. 907, 615 A.2d 1049 (1992), because in that case, decided before Indrisano, this court relied on Santiago.

       Wo note, however, that the constitutionality of this statute was addressed in State v. Anonymous, 34 Conn. Sup. 689, 695-96, 389 A.2d 1270 (1978). Justice David Shea, writing for the Appellate Session of the Superior Court, held that the harassment statute was not unconstitutionally overbroad. Id. In a decision denying the petition of “Anonymous” for a writ of habeas corpus, the United States Court of Appeals for the Second Circuit also determined § 53a-183 is not unconstitutionally overbroad. Gormley v. Director, Dept. of Adult Probation, 632 F.2d 938 (2d Cir.), cert. denied, 449 U.S. 1023, 101 S. Ct. 591, 66 L. Ed. 2d 485 (1980).

       The trial court instructed the jury as follows: “Harass means to trouble, worry or torment. Annoy means to irritate, vex, bother as by repeated action. Alarm means to make suddenly afraid or anxious, frightened.”


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    JOAN A. PEARL v. RONALD A. PEARL
    (14966)
    O’Connell, Lavery and Schaller, Js.
    Submitted on briefs September 30
    officially released November 12, 1996

      Louis I. Parley filed a brief for the appellant (defendant).

      Lois J. Lawrence filed a brief for the appellee (plaintiff).
   LAVERY, J.

The controlling issue in this appeal from an order denying a motion for modification in a dissolution action is whether the trial court was correct in limiting evidence of changes in the parties’ financial circumstances to the period after the denial of the defendant’s last motion for modification. We reverse the order of the trial court.

The facts pertinent to this appeal are as follows. A judgment of dissolution was rendered on June 27,1984. This judgment incorporated an agreement that included a provision for the defendant to pay unallocated alimony and child support to the plaintiff in the amount of $461.54 per week. This amount would be reduced by $ 150 per week when the two children reached majority. In December, 1992, the defendant filed a motion to modify the plaintiffs alimony, which was denied by the trial court, Spallone, J., on March 23, 1993, after a hearing. The defendant then filed another motion for modification or termination of alimony dated October 20, 1994, which is the subject of this appeal. The trial court, Higgins, J., at a hearing on June 6, 1995, ruled that the appropriate period of review for claims of substantial change in circumstances was from March 23, 1993, the date the first motion for modification was denied, to the time of the hearing on June 6, 1995. The trial court concluded that the defendant had to demonstrate that a substantial change in circumstances had occurred since the date of the last court order, which it determined was March 23,1993. The trial court allowed evidence of circumstances occurring only subsequent to March 23, 1993, to be admitted. The trial court, citing Borkowski v. Borkowski, 228 Conn. 729, 638 A.2d 1060 (1994), determined that an “order” meant not only the entry of a judgment or postjudgment order modifying an existing order, but also any decision denying a motion for modification. We disagree. The Supreme Court in Borkowski v. Borkowski, supra, 738, emphasized the rule that evidence is limited in the adjustment of alimony to substantial change of circumstances to events occurring subsequent to the latest alimony order.

General Statutes § 46b-86 (a) provides in pertinent part: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony . . . may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party . . . .” (Emphasis added.) In Avella v. Avella, 39 Conn. App. 669, 672, 666 A.2d 822 (1995), we cited with approval the language of A. Rutkin, E. Effron & K. Hogan, 7 Connecticut Practice Series: Family Law and Practice with Forms (1991) § 34.8, p. 583, that “[i]t is not sufficient for there simply to have been a substantial change of circumstances since the time of the immediately previous court proceeding. Rather, the change must be since the most recent prior proceeding in which an alimony order was entered.” We also follow the reasoning set forth in Benson v. Benson, 187 Conn. 380, 383 n.3, 446 A.2d 796 (1982), as follows: “The parties disagree as to whether, in evaluating the ‘change,’ the circumstances at the time of the hearing are to be measured against those in 1974, when the original judgment was rendered, or those in 1976 when a similar motion by the plaintiff, heard in conjunction with the defendant’s motion to terminate alimony, was denied. The trial court never decided which year was proper to use as a base, finding that whether comparison was made with 1974 or 1976 circumstances, an increase of only ten dollar s per week per child was warranted. The defendant argues that, since the plaintiffs 1976 motion to increase support was denied and no appeal was taken, the relevant ‘change’ is between 1976 and the present. This argument is not persuasive, however, since the support order in effect is that issued in 1974 based on the circumstances of the parties and their children at that time as set forth in General Statutes § 46b-84.

“The defendant’s view would punish a party who sought modification in good faith prematurely. An increment of, for example, $5000 per year in the salary of a payor might not be deemed ‘a substantial change in the circumstances’ as required by General Statutes § 46b-86, to warrant modification. A further increment of $5000 the next year, however, resulting in a $10,000 per year change in salary from that reported when the order was made, might well cross this threshold. The plaintiffs failure to appeal from the 1976 denial of her motion to increase support neither bars the 1980 motion nor moves the comparison year to 1976. She is not, as the defendant claims, attempting to reargue the 1976 motion by this 1980 motion. In 1976 she unsuccessfully attempted to show that the circumstances of 1976 differed significantly from those of 1974. In presenting the 1980 motion, her burden was to show that the circumstances of 1980 constituted a substantial change from those of 1974. We conclude that 1974 was the proper year for comparison.

“The situation where the court has denied a motion for modification must be distinguished from that where some modification has been granted. Any subsequent modification would then depend upon changed circumstances arising not since the original decree but since the date of the earlier modification. Theonnes v. Theonnes, 181 Conn. 111, 114, 434 A.2d 343 (1980).”

Although the language in Benson is dicta, we construe the Supreme Court’s language to be persuasive and a balanced statement of the law as it applies to motions for modification of alimony.

We conclude that the trial court should have allowed the defendant to present evidence from the date of the dissolution in 1984, when the only order of alimony was made. A review of the record convinces us that the ruling was harmful to the defendant.

The order of the trial court is reversed and the case is remanded for a new hearing on the motion to modify.

In this opinion the other judges concurred.


text:
    GEORGE JASER ET AL. v. ZONING BOARD OF APPEALS OF THE CITY OF MILFORD
    (15247)
    Foü, Lavery and Daly, Js.
    Argued September 24
    officially released November 12, 1996

      Matthew B. Woods, city attorney, with whom, on the brief, was Cynthia C. Anger, assistant city attorney, for the appellant (defendant).

      Thomas B. Lynch, for the appellees (plaintiffs).
   LAVERY, J.

The defendant appeals from the judgment of the trial court sustaining the plaintiffs’ appeal and reversing the decision of the defendant Milford zoning board of appeals (board) that the plaintiffs did not suffer a hardship and were not entitled to a variance. The sole issue in this appeal is whether the trial court impermissi-bly substituted its judgment for that of the board. We find that it did. We reverse the decision of the trial court.

The relevant facts are as follows. The plaintiffs, George Jaser, Nicholas Mainero and Jacob Mallin, own property located at 182 Milford Point Road in Milford. The lot in question measures approximately 11,688 square feet and is bordered by tidal wetlands on its rear. Fire destroyed the residence that was on the lot in 1972, and since that time the lot has remained vacant.

Prior to the submission of the variance application, the plaintiffs submitted an application to the board to have the lot declared a nonconforming building lot. The plaintiffs at that time submitted a survey that showed that a house could be constructed on the property within the applicable setback requirements.

On July 22, 1994, the plaintiffs applied to the board for a variance of Milford zoning regulations § 3.I.4.I. That regulation would require a thirty foot front yard setback for the construction of a single-family residence on the lot. The plaintiffs sought to vary the required thirty foot front yard setback to twenty feet so that they could construct a single-family residence on the property. The plaintiffs, in their application for a variance, claimed a hardship. The plaintiffs described as hardship that the “front yard setback requirement makes lot unbuildable because of the unusual shape of the building area restricted by tidal wetlands.”

At the hearing before the board, the plaintiffs presented plans for the house they proposed to construct in support of their claim for a variance. The board, by a three to two vote, denied the variance application for the following reason: “It was felt by those in opposition that there was no evidence presented to establish a hardship and noted that approval was granted for the nonconforming lot on the basis that a structure to be built would comply with setback requirements.”

The plaintiffs appealed to the Superior Court pursuant to General Statutes § 8-8. The trial court, Mancini, J., sustained the appeal and granted the variance. The trial court, in its memorandum of decision stated in pertinent part: “This lot is more unique than others because of the presence of tidal wetlands to rear of the property and as such needs the requested variance. To construct the desired dwelling without wetlands approval would be most difficult. . . . The court finds the board’s reasoning was inadequate and improperly recorded.” In addition, the trial court concluded: “The new structure would enhance property values surrounding the building and the decision of the board to allow them to build a small, narrow building to conform with the zoning laws whereby said building would certainly be a detriment to real estate values.” The defendant now appeals the decision of the trial court.

The controlling issue on appeal is whether the trial court impermissibly substituted its factual findings for those of the board. “ ‘ “It is well settled that courts are not to substitute their judgment for that of the board, and that the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing ... as the credibility of witnesses and the determination of factual issues are matters within the province of the administrative agency.”. . . Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 731-32, 546 A.2d 919 (1988), aff'd, 211 Conn. 76, 556 A.2d 1024 (1989). The court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support its findings. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 540, 525 A.2d 940 (1987). “[E]vidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred.” ’ Mobil Oil Corp. v. Zoning Board of Appeals, 35 Conn. App. 204, 209, 644 A.2d 401 (1994).” Conetta v. Zoning Board of Appeals, 42 Conn. App. 133, 137-38, 677 A.2d 987 (1996). Where the board states its reasons on the record we look no further. Westport v. Norwalk, 167 Conn. 151, 161, 355 A.2d 25 (1974).

In the present case, a hardship was not shown because the plaintiffs admitted that a house, even though not the type that they desired, could have been built on the lot while conforming to the setback requirements. “Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship . . . Krejpcio v. Zoning Board of Appeals, 152 Conn. 657, 662, 211 A.2d 687 (1965). It is well established that the power to grant a variance should be sparingly exercised. Kaeser v. Zoning Board of Appeals, 218 Conn. 438, 445, 589 A.2d 1229 (1991); Allen v. Zoning Board of Appeals, 155 Conn. 506, 510, 235 A.2d 654 (1967). In addition, as the trial court stated in its memorandum, the plaintiffs had an alternative route to accomplish their propose without seeking a variance.

We find that there was substantial evidence on the record to support the finding by the board that a hardship did not exist, and thus a variance was not warranted. In sum, we conclude that the trial court should not have substituted its judgment for that of the board.

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs’ appeal.

In this opinion the other judges concurred.

       “Under General Statutes § 8-6 (3), the board may grant a variance provided (1) the variance is shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning regulation is shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.” Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 709, 535 A.2d 799 (1988).

       To establish a hardship under General Statutes § 8-6, an applicant must show not only that he is thwarted in a desired use of land, but also that he is being completely or almost completely deprived of the use of the value of that land. See Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151-52, 365 A.2d 387 (1976); Devaney v. Zoning Board of Appeals, 132 Conn. 537, 542, 45 A.2d 828 (1946).

       The plaintiffs had previously submitted a plan for a house, albeit not the one that is the subject of this appeal, that could conform to the particular setback requirements of the lot. Addressing this “inconsistency,” one board member at the public hearing on August 9, 1994, stated: “Under our regulations, any lot that’s nonconforming, and is declared nonconforming, must meet all the other setback requirements, and you had it declared, or your client had it declared at one point, a nonconforming lot, indicating that, by that, it could meet all setback requirements and then nine months later, is here asking for a variance of those setback requirements. I find that a little inconsistent.”


author: FREEDMAN, J.

text:
    RONNIE HINTON v. COMMISSIONER OF CORRECTION
    (15241)
    Dupont, C. J., and O’Connell and Freedman, Js.
    Argued September 19
    officially released November 12, 1996

      Michael A. Fitzpatrick, special public defender, for the appellant (petitioner).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (respondent).
   FREEDMAN, J.

The petitioner appeals from the judgment of the habeas court. He claims first that the habeas court improperly denied his petition for certification to appeal following the dismissal of his amended petition for a writ of habeas coipus, and he claims second that the habeas court improperly dismissed counts three and four of his amended petition for habeas coipus relief.

The facts are not in dispute. The defendant was convicted of three counts of murder in violation of General Statutes § 53a-54a, one count of capital felony in violation of General Statutes § 53a-54b, one count of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a, and one count of assault in the first degree in violation of General Statutes (Rev. to 1989) § 53a-59. On appeal, our Supreme Court reversed the convictions for attempted murder and assault in the first degree, holding that the trial court had improperly accepted inconsistent jury verdicts. The Supreme Court affirmed the capital felony and three murder convictions. State v. Hinton, 227 Conn. 301, 303-304, 630 A.2d 593 (1993).

The petitioner then filed an amended petition for a writ of habeas corpus alleging, inter alia, that he had been denied the right to confront the witnesses against him and had been denied the effective assistance of counsel. Following an evidentiary hearing, the habeas court dismissed the petition and thereafter denied the petitioner’s request for certification to appeal. The petitioner then filed the present appeal.

In count three of the amended petition, the petitioner claimed that he was denied his constitutional right to confront state’s witness Bennie Fulse when the trial court limited his cross-examination of him. Fulse had testified on direct examination that his own unrelated criminal case was resolved, and that he had not received anything in his case in exchange for his testimony against the petitioner. The habeas court’s dismissal of count three of the amended petition was predicated on the fact that the petitioner had never raised this claim at trial or on appeal and had failed to establish good cause for the default, as required by the “cause and prejudice” standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); see also Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993); Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991).

In count four of the amended petition, the petitioner claimed that he was denied the effective assistance of counsel by the failure of his trial attorney properly to assert the petitioner’s constitutional right to cross-examine Pulse and to except to the trial court’s ruling. The habeas court’s dismissal of this count was predicated on a factual review of the petitioner’s claims and a determination that the petitioner had failed to satisfy the prejudice requirement of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The habeas court found that the petitioner had failed to establish a reasonable probability that, absent counsel’s unprofessional errors, the result of the proceeding would have been different. See Commissioner of Correction v. Rodriquez, 222 Conn. 469, 477, 610 A.2d 631 (1992); Bunkley v. Commissioner of Correction, 222 Conn. 444, 454-55, 610 A.2d 598 (1992).

After a review of the record and briefs, and after hearing the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Dontigney v. Commissioner of Correction, 42 Conn. App. 304, 305, 679 A.2d 55, cert. denied, 239 Conn. 918, 682 A.2d 999 (1996); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

In this opinion the other judges concurred.


text:
    WENDELL STOVALL v. COMMISSIONER OF CORRECTION
    (14607)
    Dupont, C. J., and O’Connell and Freedman, Js.
    Argued September 19
    officially released November 12, 1996

      Max F. Brunswick, for the appellant (petitioner).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).
   FREEDMAN, J.

The petitioner appeals from the judgment of the habeas court. He first claims that the habeas court improperly denied his petition for certification to appeal following the dismissal of his amended petition for a writ of habeas corpus, and he claims second, that the habeas court improperly dismissed his amended petition for habeas corpus relief.

The facts are not in dispute. The petitioner was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and failure to appear in the first degree in violation of General Statutes § 53a-172. The petitioner appealed to this court from his conviction arguing, inter alia, that the trial court had improperly allowed the state to introduce his statements to a police officer without first requiring the state to prove that the officer had properly advised the petitioner of his rights and that the petitioner had waived them. State v. Irving, 27 Conn. App. 279, 281, 606 A.2d 17, cert. denied, 222 Conn. 907, 608 A.2d 694 (1992). In Irving, we declined to give Golding review to this claim. We noted in the petitioner’s criminal appeal that he had made a tactical choice to allow the statements to come before the jury in order to bolster his testimony at trial, and that he could not therefore claim “foul” in the admission of the statements. Id., 285, quoting State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989). The petitioner’s conviction was, therefore, upheld on appeal.

The petitioner then filed an amended petition for a writ of habeas corpus alleging that his statements were obtained without a valid waiver of his Miranda rights and that he had been denied the effective assistance of counsel. Following a hearing, the habeas court dismissed the petition and thereafter denied the petitioner’s request for certification to appeal. The petitioner then filed the present appeal.

With regard to the first count of the petition, in which the petitioner alleged that the statements he made to the arresting officer were obtained in violation of his Miranda rights, the habeas court noted that trial counsel chose not to pursue the motion to suppress these statements in order to gain a tactical advantage at trial. The habeas court held that such a deliberate decision does not satisfy the cause component of the Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), “cause and prejudice” standard of review-ability.

In the second count of his petition, the petitioner alleged that he was denied the effective assistance of counsel because his attorney had to try the case unprepared. The habeas court’s dismissal of this count was predicated on a factual review of the petitioner’s claims and a determination that the petitioner had failed to establish that his trial attorney’s performance fell below an objective standard of reasonableness, as is required in order to prevail on a claim of ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Johnson v. Commissioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214 (1991).

After a review of the record and briefs, and after hearing the parties at oral argument, we conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Dontigney v. Commissioner of Correction, 42 Conn. App. 304, 305, 679 A.2d 55, cert. denied, 239 Conn. 918, 682 A.2d 999 (1996); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The appeal is dismissed.

In this opinion the other judges concurred.

       The petitioner is also known as Wendell Irving.

         State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

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


author: HEIMAN, J.

text:
    STATE OF CONNECTICUT v. ANTHONY CARTER
    (14993)
    O’Connell, Heiman and Healey, Js.
    Argued September 16
    officially released November 19, 1996

      Mark Rademacher, special public defender, for the appellant (defendant).

      Denise B. Smoker, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, Christopher L. Morano, supervisory assistant state’s attorney, and Judith Rossi, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered following his guilty pleas, of violating the Corrupt Organizations and Racketeering Activity Act (CORA); General Statutes § 53-395 (b) and (c); conspiracy to violate CORA; General Statutes §§ 53a-48 and 53-395 (b) and (c); and three counts of sale of narcotics in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that his pleas of guilty were not entered knowingly and voluntarily because the trial court failed to advise the defendant that he enjoyed a right against self-incrimination and that he was waiving that right by his pleas of guilty. The defendant also asserts that his sentencing hearing was flawed because the trial court violated his right to due process by using unreliable information in sentencing. We agree with the defendant’s claim that the trial court failed to include in its canvass of the defendant’s guilty pleas a sufficient warning that his pleas of guilty operated as a waiver of his fundamental constitutional right against self-incrimination and, therefore, the canvass was fatally defective.

The record and transcripts of the proceedings before the trial court reveal the following relevant facts. On September 13, 1994, the state filed an information against the defendant charging him with a variety of criminal offenses arising out of incidents that were claimed to have occurred between April 19 and May 6, 1994. The charges as filed set forth the violations to which the defendant entered his guilty pleas, as well as counts alleging conspiracy to sell narcotics and sale of narcotics within 1500 feet of a housing project.

On March 22, 1995, the defendant withdrew his prior pleas and elections as to all counts of the information, and entered pleas of guilty to the counts of the information of which he was convicted. At the time of the guilty pleas, an agreement was placed on the record indicating that the state would recommend that the defendant receive a sentence of sixteen years in the custody of the commissioner of correction, with the right to argue for a lesser period of incarceration, but in no event would he be entitled to receive a sentence of less than eight years. After a recitation of the factual predicate for the pleas and the state’s placing the plea agreement on the record, the trial court proceeded to canvass the defendant to determine whether the pleas of guilty were intelligently and voluntarily made.

During the canvass, the defendant admitted that he had made three sales of heroin to undercover officers, that he had acted as lookout for fellow purveyors of narcotics and that he had attempted to flag down vehicles to sell narcotics. At the end of the canvass, the trial court found that the pleas were entered voluntarily, that the defendant understood the crimes charged, that, by his own concession, he had received effective assistance of counsel, and that he admitted the factual basis of each charge against him. Accordingly, the trial court accepted the pleas of guilty and made findings of guilty as to each of the charges to which the defendant had entered a plea of guilty. The case was referred to the office of adult probation for a presentence investigation and was continued for sentencing.

On May 25,1995, the defendant appeared for sentencing. At the sentencing hearing, the trial court, over the defendant’s objection, viewed a surveillance tape made by the police that purported to show the defendant engaged in illegal activities involving narcotics. One of the surveillance officers described for the court the activities shown on the film. The trial court restricted the commentary to events that related only to those counts to which the defendant had pleaded guilty. The trial court heard a statement from Christopher Lyons, supervisor of the intelligence unit of the Hartford police department. The trial court also heard statements from the defendant and others in his behalf, reviewed letters submitted in the defendant’s behalf and heard arguments from counsel as to an appropriate sentence.

At the request of counsel for the defendant, and with the concurrence of the state, the trial court merged the defendant’s convictions on the first and second counts and imposed only a single sentence on counts one and two of the information. At the completion of the sentencing hearing, the court sentenced the defendant to the custody of the commissioner of correction for a period of twelve years on the merged counts one and two, and to concurrent terms of twelve years on each of the remaining counts, for a total effective sentence of twelve years. The sentence was less than the maximum period of incarceration on which the state and the defendant had agreed at the time of the plea, and more than the minimum on which they had agreed. Thus, the parameters of the plea agreement were met by the sentence imposed.

At no time did the defendant move to withdraw his pleas, nor did he file any postsentence motions in the trial court. The defendant, on appeal, raises for the first time his claim that the trial court’s canvass was constitutionally defective.

The defendant first asserts that the trial court improperly found that his pleas were entered knowingly and voluntarily because the trial court failed to advise him that he enjoyed a right against self-incrimination and that he was waiving that right by reason of his pleas of guilty. We agree with that claim. Because our resolution of that claim is dispositive of the appeal, we do not reach the remaining issue raised by the defendant.

As we have noted, the defendant raises this claim for the first time on appeal. Our Supreme Court has determined that the defendant, under these circumstances, is nonetheless entitled to a review of this claim. “[Bjecause the error claimed by the defendant involves the violation of a fundamental constitutional right, we will consider it for the first time on appeal. State v. Godek, 182 Conn. 353, 356, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).” State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983).

We begin our analysis by examining the fundamental principles of law that govern our resolution of the defendant’s claim. “A guilty plea is itself a conviction; Boykin v. Alabama, 395 U.S. 238, 242, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); Paulsen v. Manson, 203 Conn. 484, 489, 525 A.2d 1315 (1987); and a defendant, when entering such a plea, waives several constitutional rights. Boykin v. Alabama, supra, 243; McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); Paulsen v. Manson, supra [489]; State v. Gilnite, [202 Conn. 369, 381, 521 A.2d 547 (1987)]. First is the privilege against self-incrimination, second is the right to a jury trial, and third is the right to confront one’s accusers. Boykin v. Alabama, supra [234]; McCarthy v. United States, supra [466]; State v. Gilnite, supra, 381 n.14. To ensure that a defendant is accorded due process, [therefore] the plea must be voluntarily and intelligently entered. Boykin v. Alabama, supra, 243 n.5; McCarthy v. United States, supra [466]; Paulsen v. Manson, supra [489]; Oppel v. Lopes, 200 Conn. 553, 556, 512 A.2d 888 (1986); State v. Badgett, [200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)]; State v. Lopez, 197 Conn. 337, 341-42, 497 A.2d 390 (1985). State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

“Because it cannot be presumed from a silent record that the decision to plead guilty was the product of the defendant’s full understanding of what the plea connotes and of its consequences; Boykin v. Alabama, supra, 395 U.S. 243-44; the federal constitution requires that the record of the plea canvass indicate the voluntar-iness of any waiver of the three core constitutional rights [implicated by the guilty plea]. State v. Badgett, supra, 200 Conn. 418. To ensure that this constitutional requirement is satisfied, the trial court is obliged to comply with the dictates of Practice Book §§711 and 712, which enumerate the responsibilities of the court in conducting the plea canvass. However, because the determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances; State v. Wright, supra, 207 Conn. 287; the plea may satisfy constitutional requirements even in the absence of literal compliance with the prophylactic safeguards of Practice Book §§711 and 712. State v. Badgett, supra, 418. State v. Domian, 235 Conn. 679, 686-87, 668 A.2d 1333 (1996).” (Internal quotation marks omitted.) State v. Alicea, 41 Conn. App. 47, 54-55, 674 A.2d 468 (1996). The record of the plea proceedings must, nonetheless, affirmatively reflect that the defendant made a knowing and intelligent waiver of his constitutional rights, especially of the three core constitutional guarantees enumerated in Boykin. State v. Badgett, supra, 418.

We have reviewed with care the entire transcript of the plea proceedings before the trial court. The enumeration of rights that the defendant was waiving by his pleas of guilty were set forth in a single paragraph in the transcript. At no point did the trial court directly address itself to the core constitutional right against self-incrimination as guaranteed to the defendant under the fifth and fourteenth amendments to the federal constitution. See Boykin v. Alabama, supra, 395 U.S. 243; Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

The state argues that the cumulative effect of the trial court’s canvass was that the defendant was sufficiently advised of his constitutional right against self-incrimination. We do not agree.

In State v. Nelson, 221 Conn. 635, 641-42, 605 A.2d 1381 (1992), our Supreme Court held that “[cjentral to the [guilty] plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment. He thus stands as a witness against himself and he is shielded by the Fifth Amendment from being compelled to do so . . . . We conclude that, for protection of [the defendant’s] privilege against self-incrimination, the federal constitution mandates . . . that a defendant be apprised of the fact that he does not have to enter a plea of guilty . . . and thus incriminate himself.” (Citations omitted; internal quotation marks omitted.)

Here, the trial court never apprised the defendant that he did not have to plead guilty. Thus, the trial court’s plea canvass violated the defendant’s constitutional right against self-incrimination and, therefore, the pleas of guilty were not knowingly and voluntarily entered.

The judgment is reversed and the case is remanded with direction to vacate the defendant’s guilty pleas and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”
      Practice Book § 712 provides: “The judicial authority shall not accept a plea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his counsel.”

       The trial court’s enumeration of the defendant's constitutional rights was as follows:
      “The Court: And you understand that you could have gone to trial on each and every one of these counts? [Jon] Schoenhorn, your attorney, could have represented you before a judge or jury. If you had a trial, the state would have been required to prove each of the counts beyond a reasonable doubt. Witnesses would have been subpoenaed. They could have been subject to cross-examination. If you so desired, you could have taken the stand on your own behalf, if that was your choice of counsel. And basically, because you’re pleading here voluntarily before this court, today, do you understand that you’re waiving your ability to have a t rial on each and every one of these counts here this afternoon?
      “The Defendant,: Yes.”

       The fifth amendment to the United States constitution provides in pertinent part: “No person shall be . . . compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property, without due process of law . . . .”

       The fourteenth amendment to the federal constitution provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall malee or enforce any law which shall abridge tire privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty orproperty, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

       Because the defendant’s pleas of guilty were entered as a part of a single plea bargain that encompassed both a sentencing agreement and an agreement that the state enter nolles with respect to other counts, all of which was accomplished, our conclusion here necessarily unravels the entire plea bargain. See State v. Alicea, supra, 41 Conn. App. 60 n.14.


author: FOTI, J.

text:
    R AND R POOL AND HOME, INC., ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF RIDGEFIELD ET AL.
    (15050)
    Foti, Spear and Hennessy, Js.

      Argued September 19
    officially released November 19, 1996

      Raymond F. Ross, for the appellants (plaintiffs).

      J. Allen Kerr, Jr., for the appellee (named defendant).

      Thomas W. Beecher, for the appellee (defendant Oswald Inglese).
   FOTI, J.

This appeal arises out of the denial of an application for site plan approval made to the zoning authorities of the town of Ridgefield. The plaintiffs, R and R Pool and Home, Inc. (R & R), and Neil Farans, Alvin G. Farans and Diane Green, as individuals and as principals of the involved partnerships (partnership), appeal from the judgment of the trial court dismissing their appeal from the decision of the defendant, the zoning board of appeals of the town of Ridgefield (board). The board’s decision affirmed the denial of a site plan application by the defendant Oswald Inglese, planning director of the town of Ridgefield. On appeal, the plaintiffs claim that the trial court improperly concluded that (1) R & R lacked standing because it did not sign the application for site plan approval, (2) the partnership failed to maintain its status as an aggrieved party during the pendency of this action because the purchase money first mortgage that it received was not substantial and legitimate, and (3) the published legal notice of the decision and related documents in a previous appeal and the attachments to the amended complaint were not admissible. We reverse the judgment of the trial court in part and affirm it in part.

I

The record reveals the following relevant facts. The property that is the subject of this appeal is located at 975 Ethan Allen Highway in the town of Ridgefield. The property is situated in a B-2 zone in which retail sales are not permitted. A variance, however, had been granted to a previous lessee in 1990 to allow the use of the property for retail and wholesale sales. The extent of sales allowed by the variance is at issue in the merits of the appeal. The scope of the action for the variance, as set out in a letter from the board, stated that the variance was limited to the wholesale and retail sales of “oriental rugs, fine furniture and art.” The plaintiffs argue that the published legal notice did not place such restrictions on the variance.

On July 2, 1993, Attorney Melvin J. Silverman filed an application for site plan approval of the property for a “[w]arehouse, office and retail sale of fine outdoor furniture.” The application lists the individuals involved in the partnerships as the owners and R & R as the name of the business to be conducted on the property. The planning director denied the application. On October 7,1993, the partnership and R & R appealed that decision to the board. The board sustained the decision of the planning director.

On February 24, 1994, the plaintiffs challenged the board’s decision by filing an appeal with the trial court. On July 29, 1994, the plaintiffs filed an amended complaint alleging that the decision of the board was arbitrary, illegal and an abuse of discretion, and that the board should be directed to sustain their appeal of the planning director’s denial of their site plan application.

The trial court determined that R & R lacked standing to appeal the decision because it was not the applicant for the site plan approval. It further found that, although the partnership owned the property at the time of the proceeding before the zoning authorities, it sold the property to R & R for $315,000 before the appeal process was completed in the trial court. The trial court ruled that, despite retaining a $1500 purchase money mortgage, the partnership failed to maintain its status as an aggrieved party during the pendency of the action, deeming its interest in the property, after it sold the property to R & R, as not “substantial and legitimate.” The trial court, therefore, dismissed the appeal as to all plaintiffs without reaching the merits of the board’s decision.

The plaintiffs filed a petition for certification to appeal to this court, which was granted on July 20, 1995. They filed this appeal on July 31, 1995.

II

The first two issues on appeal relate to whether R & R has standing to appeal and whether the partnership is aggrieved. These determinations were questions of fact for the trial court. Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 343, 573 A.2d 1222 (1990) . “The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts.” (Citations omitted; internal quotation marks omitted.) DiBonaventura v. Zoning Board of Appeals, 24 Conn. App. 369, 374, 588 A.2d 244, cert. denied, 219 Conn. 903, 593 A.2d 129 (1991).

A

The trial court found that R & R lacked standing to appeal because it was not the applicant on the application for site plan approval. The trial court determined that R & R was only a prospective lessee at the time of the application to the planning director and, therefore, cannot maintain the appeal.

The plaintiffs argue that the defendants waived the issue of standing by not raising it as a special defense before the trial court. In the alternative, the plaintiffs contend that R & R has standing based on a series of contracts that resulted in R & R’s purchase of the property.

Pursuant to General Statutes § 8-8 (b), the plaintiffs must establish that they are aggrieved by the decision of a zoning authority in order to have standing to appeal to the Superior Court. “The question of aggrievement is essentially one of standing.” Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). The issue of standing invokes the trial court’s subject matter jurisdiction. D.S. Associates v. Planning & Zoning Commission, 27 Conn. App. 508, 511, 607 A.2d 455 (1992). The issue cannot be waived. “Proof of aggrievement is essential to a trial court’s jurisdiction of a zoning appeal.” Connecticut Resources Recovery Authority v. Planning & Zoning Commission, 225 Conn. 731, 739 n.12, 626 A.2d 705 (1993); see also Planning & Zoning Commission v. Gaal, 9 Conn. App. 538, 542-43, 520 A.2d 242, cert. denied, 203 Conn. 803, 522 A.2d 294 (1987); but see Fuller v. Planning & Zoning Commission, 21 Conn. App. 340, 346, 573 A.2d 1222 (1990).

The facts of this case, as found by the trial court, demonstrate that R & R had a sufficient interest in the property at the time of the appeal and maintained it throughout the appeal process. On July 22,1993, a commercial lease was executed by the partnership, as landlord, and R & R, as tenant, for nine months from September 1, 1993, through May 31, 1994. Another contract was signed on April 15, 1994, to sell the property to R & R. On September 2, 1994, the partnership executed and delivered a warranty deed conveying title to R & R for a purchase price of $315,OOO. The plaintiffs’ appeal was filed in the Superior Court on February 24, 1994. R & R was therefore a tenant at the time of the filing of this appeal, and soon thereafter became a prospective purchaser through the April 15, 1994 contract of sale.

Our Supreme Court has recognized that certain lessees of property may apply for a permit or variance. See Richards v. Planning & Zoning Commission, 170 Conn. 318, 322, 365 A.2d 1130 (1976). Moreover, the court has determined that prospective business operators may be aggrieved. See DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn. App. 377.

In addition, R & R was referred to as an interested party throughout the proceedings before the planning director and the board. The application for site plan approval requested permission for R & R to use the premises for the sale of outdoor furniture. Correspondence between Silverman and the planning director referred to R & R. Legal notice of this decision referred to R & R. The board affirmed the planning director’s denial, referring to R & R in its decision. The board also referred to R & R as the applicant for the site plan approval throughout the proceedings and in its decision.

“Standing is not a technical rule intended to keep aggrieved parties out of court; nor is it a test of substantive rights. Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) DiBonaventura v. Zoning Board of Appeals, supra, 24 Conn. App. 373-74. “The key ... is that [the plaintiffs] have much more than an abstract interest in the property or the issue; they are all injured by the denial of their application and this is the interest the aggrievement and standing concepts are intended to protect.” T. Tondro, Connecticut Land Use Regulation (2d Ed. 1992) § 8.B.2a, p. 541.

The record clearly demonstrates that R & R was a lessee and had contracted to purchase the property during the appeal to the trial court and that it was an interested party in the proceedings before the zoning authorities. R & R, therefore, did not lack standing to bring this appeal, and the trial court improperly dismissed it as to R & R.

B

The trial court determined that the $1500 purchase money mortgage the partnership retained in the property was not a sufficiently significant interest so as to support aggrievement. The plaintiffs argue that the amount of the mortgage is irrelevant as to the issue of aggrievement.

“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 challenged action], as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the [challenged action].” (Internal quotation marks omitted.) Steeneck v. University of Bridgeport, 235 Conn. 572, 579-80, 668 A.2d 688 (1995). “Although a party may have had an appealable interest in a controversy, if, after judgment, his interest is either conveyed or transferred absolutely ... his right to appeal is lost, since he no longer has any interest in the litigation and is not injured by the result of the action.” Southbury v. American Builders, Inc., 162 Conn. 633, 634, 295 A.2d 566 (1972).

Our examination of Connecticut authority discloses only one decision construing whether a mortgagee’s interest is sufficient to establish a mortgagee’s aggrievement. In Burke v. Zoning Board, Superior Court, judicial district of Fairfield, Docket No. 300221 (April 19,1993), the court, Fuller, J., in a well reasoned decision, stated that “[e]ven though Connecticut adheres to the title theory of mortgages, the mortgage is regarded as mere security and the mortgagor for most purposes is regarded as the sole owner of the land; the mortgagee has title and ownership enough to make the security available, but for substantially all other purposes is not regarded as the owner.” In Burke v. Zoning Board, supra, the plaintiff did not hold a first mortgage on property, but was the holder of a fourth mortgage on land abutting the subject property. The trial court made the determination that the plaintiff was not statutorily aggrieved pursuant to § 8-8 (a) (1) because it could not “in any realistic sense be considered a ‘person owning land’ intended by the legislature to have automatic standing to appeal a zoning decision on adjacent property.” Id. The trial court stated in dicta, however, that an individual may be classically aggrieved if the individual held a fourth mortgage on the property that was the subject of the application to the board. Id.

Other jurisdictions do not provide much guidance as to the question of whether a mortgagee is aggrieved by a zoning decision affecting the mortgaged property. See 83 Am. Jur. 2d, Zoning and Planning § 1031 (1992). In Eckerman v. Murdock, 276 App. Div. 927, 928, 94 N.Y.S.2d 557 (1950), a case cited by the plaintiffs, the petitioner before the zoning authorities was the owner of the subject property. Before the time of the appeal, the petitioner had conveyed the property to a third party and had taken back a purchase money mortgage. Without lengthy analysis, the court found that the petitioner had standing to appeal on her own behalf or as an agent with consent of the holder of legal title.

In Richards v. Planning & Zoning Commission, supra, 170 Conn. 323, our Supreme Court analyzed decisions from Connecticut and other jurisdictions that addressed aggrievement issues and concluded that “it is not possible to extract a precise comprehensive principle which adequately defines the necessary interest which a nonowner must possess in order to have standing . . . .” Id., 323-24.The court noted that a determination of aggrievement is not based primarily on a categorization of the applicant, but on a variety of factors specific to the facts of each case such as “[w]hether the applicant is in control of the property, whether he is in possession or has a present or future right to possession, whether the use applied for is consistent with the applicant’s interest in the property, and the extent of the interest of other persons in the same property . . . .” Id.

Because we are unable to find determinative precedent as to whether a mortgagee is aggrieved for purposes of a zoning appeal, we 'will analyze the facts of this case pursuant to our traditional two-prong analysis for classical aggrievement. The partnership established the first prong of classical aggrievement because, by maintaining a $1500 purchase money mortgage in the property, it had more than a general interest in the property. The partnership failed, however, to establish the second prong of the analysis, that its interest has been specially and injuriously affected by the decision of the board. The record does not demonstrate that this mortgage interest will be affected because the zoning authorities denied the site plan application. “ ‘[TJhe plaintiffs were required to plead and prove some injury in accordance with our rule on aggrievement.’ ” Fuller v. Planning & Zoning Commission, supra, 21 Conn. App. 343. The mere $1500 purchase money mortgage is not likely to be in jeopardy of default for a property that sold for $315,000. If R & R defaults on payment of the $1500 mortgage debt, the partnership could obtain a foreclosure judgment and readily recover its $1500 interest. The trial court’s decision that the partnership was not aggrieved is therefore not clearly erroneous. We affirm the judgment dismissing the appeal as to the partnership.

Ill

The final issue that we must address, because we remand the appeal to the trial court as to the plaintiff R & R, is whether the trial court improperly excluded items from evidence concerning the previous variance on the property. “[T]he trial court has broad discretion in admitting evidence so that its rulings will not be disturbed absent a showing of a clear abuse of discretion.” Borkowski v. Sacheti, 43 Conn. App. 294, 323, 684 A.2d 1095 (1996).

Section 8-8 (k) provides in part that “[t]he court shall review the proceeding of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. . . .” The trial court, in its discretion, will determine if the offer of additional evidence was necessary for the equitable disposition of the appeal. Troiano v. Zoning Commission, 155 Conn. 265, 268, 231 A.2d 536 (1967).

The plaintiffs claim that the trial court should have admitted the published legal notice of the decision and related documents in the previous variance application granted to Classics of Ridgefield, and exhibits E and F as referenced in paragraphs eighteen and nineteen of the amended complaint. They claim that these documents are significant because, unlike the letter sent to the applicant, there is no “Scope of the Action” or any other conditions listed as part of the approval of the variance in any of these official notices.

General Statutes § 8-7 requires that notice of the decision of the board be published in a newspaper. The statute does not mandate that the reasons for the zoning authorities’ decision or the specific conditions incorporated in the decision appear in the published notice. The language of the notice, therefore, is irrelevant to the substance of the decision. The trial court did not abuse its discretion by refusing to allow the plaintiffs to introduce evidence outside the record.

The judgment is reversed only as to R & R’s standing, and the case is remanded for further proceedings to address the merits of R & R’s appeal in accordance with this decision.

In this opinion the other judges concurred.

       The individual plaintiffs are principals of the Farans Family Limited Partnership, the Farans Limited Partnership II, and DB Revocable Trust. These individuals and partnerships also conducted business under the trade name Universal Properties. Throughout the proceedings and for the purposes of this opinion, the individuals and the partnerships will be referred to as one entity.

       From April, 1990, to September, 1993, the property was leased by the partnership 1o Richard Amatulli, doing business as Classics of Ridgefield.

       In June, 1993, the board denied the partnership’s application for a variance to allow full retail use of the property by R & R.

       See footnote 1.

       The planning director denied the application for the following stated reasons: “'(1) The business you are planning to operate, with the merchandise you are proposing to sell, is not the ‘fine furniture’ contemplated by the Zoning Board of Appeals in its decision on November 5, 1990 in appeal no. 90-099 [the variance granted to Classics of Ridgefield]; (2) the business you are proposing to operate, with the merchandise you are proposing to sell, was specifically denied a variance to do so by the Zoning Board of Appeals at its June 21, 1993 meeting of appeal no. 93-014 [the variance application filed by the partnership to permit retail sales by R & R]; and, (3) retail sales is not a permitted use in a B-2 Zone.”

       The plaintiffs had previously appealed to the trial court without appealing to the board, but the appeal was dismissed for failure to exhaust administrative remedies.

       The trial court based this determination on § 324. OGR of the Ridgefield zoning regulaiions, which states in part that “[d]ecisions made by the planning director . . . may be appealed by the applicant to the zoning board of appeals.” (Emphasis added.)

       The terms standing and aggrievement are often used interchangeably in Connecticut zoning law. Pergament Norwalk Corp. v. Kalmowitz, 4 Conn. App. 633, 636, 496 A.2d 217, cert. denied, 197 Conn. 813, 499 A.2d 60 (1985); but see D.S. Associates v. Planning & Zoning Commission, 27 Conn. App. 508, 511, 607 A.2d 455 (1992) (“[t]his is one of those rare cases in which the plaintiff is aggrieved but does not have standing”).

       In Fuller v. Planning & Zoning Commission, supra, 21 Conn. App. 340, the defendant claimed that the new owner of the property at issue lacked the capacity to be substituted as plaintiff. We found the substituted plaintiff did not lack standing for purposes of the appeal. In dicta, however, we stated that “[l]ack of capacity to maintain an action must be raised by way of special defense and in a timely manner or will be deemed to be waived.” Id., 346. The plaintiffs rely on this language to support their claim that lack of standing must be raised by special defense.

       The plaintiffs discuss a series of contracts intending to demonstrate that R & R had more than an abstract interest in the property even before the signing of the lease on July 22, 1993. For purposes of finding a party aggrieved to bring an appeal to Superior Court pursuant to General Statutes § 8-8, these contracts are not relevant.

       The trial court relies on Primerica v. Planning & Zoning Commission, 211 Conn. 85, 558 A.2d 646 (1989), Richards v. Planning & Zoning Commission, supra, 170 Conn. 318, and Burke v. Zoning Board, Superior Court, judicial district of Fairfield, Docket No. 300221 (April 19,1993), as requiring a substantial interest in the subject property for a party to be aggrieved if it were not an owner of the property.


author: O’CONNELL, J.

text:
    MARIE L. KEEYS v. MALCOLM J. KEEYS
    (15255)
    O’Connell, Lavery and Spear, .Is.
    Submitted on briefs September 30
    officially released November 19, 1996

      Herman H. Tarnow filed a brief for the appellant (defendant).

      Jeremiah Donovan filed a brief for the appellee (plaintiff).
   O’CONNELL, J.

The defendant appeals from the judgment dissolving his marriage to the plaintiff. He claims that the trial court improperly (1) awarded alimony to the plaintiff, (2) awarded the family residence to the plaintiff, (3) failed to require the plaintiff to assume responsibility for any of the defendant’s financial liabilities, and (4) awarded postmajority support. We affirm the judgment in part and reverse it in part.

The record shows that the plaintiff and the defendant were married on August 5, 1972. One child was born to the parties on August 9, 1977. She reached majority while this action was pending in the trial court.

We consider the plaintiffs claims concerning alimony, property distribution and responsibility for the defendant’s financial liabilities together. “A trial court is endowed with broad discretion in family relations cases. Our review of such decisions is confined to two questions: (1) whether the court correctly applied the law, and (2) whether it could reasonably have concluded as it did. ... As an appellate court, we do not review the evidence to determine whether a conclusion different from the one reached could have been reached. . . . The goal of our analysis is simply to decide whether the trial court’s conclusion was reasonable. The trial court has the advantage of viewing and assessing the demeanor, attitude and credibility of the witnesses and is therefore better equipped than we to assess the circumstances surrounding the dissolution action. Thus, we do not retry the facts.” (Citations omitted.) Palazzo v. Palazzo, 9 Conn. App. 486, 488, 519 A.2d 1230 (1987).

After reviewing the record, we conclude that the trial court determined the financial awards and division of property by correctly applying the law after carefully reviewing the evidence presented. We affirm the decision of the trial court on the defendant’s first three claims.

II

The defendant claims in the fourth issue that the trial court improperly awarded postmajority support by ordering that “the defendant shall provide medical and dental insurance for his daughter available to him through his employment until she has been graduated from college or has reached age 22, whichever first occurs. He shall also be responsible for one half of the child’s uninsured medical and dental expenses during that same time period and the plaintiff shall be responsible for the remaining one half of the expenses. ” (Emphasis added.) General Statutes § 46b-84 (b) authorizes child support orders only until the child reaches the age of eighteen, or if the child is in high school, until age nineteen. In the absence of a written agreement between the parties the trial court may not order child support beyond the age of majority. Miller v. Miller, 181 Conn. 610, 613-14, 436 A.2d 279 (1980); see General Statutes § 46b-66. There was no written agreement in this case, and the plaintiff concedes that the court lacked jurisdiction to extend postmajority orders until age twenty-two.

Although the child was a full-time student when the order was rendered, she has now passed her nineteenth birthday and the defendant is not liable for any medical or dental expenses or unreimbursed medical or dental expenses after that date. This court does not know whether there are any outstanding medical or dental expenses that accrued prior to the child’s majority under § 46b-84. Such expenses are payable pursuant to the support order. To the extent that that order requires support after the statutory age limits (age nineteen or completion of twelfth grade), that portion of the judgment must be vacated.

The judgment is reversed only as to the award of postmajority support, and the case is remanded with direction to amend the judgment to eliminate the order of postmajority support.

In this opinion the other judges concurred.

       General Statutes § 46b-84 (b) provides in pertinent part: “If there is an unmarried child of the marriage who has attained the age of eighteen, is a full-time high school student and resides with a parent, the parents shall maintain the child according to their respective abilities if the child is in need of maintenance until such time as such child completes the twelfth grade or attains the age of nineteen, whichever first occurs. . . .” (Emphasis added.)

       The applicable portion of General Statutes § 46b-66 provides: “If the [separation] agreement is in writing and provides for the care, maintenance or support of a child beyond the age of eighteen, it may also be incorporated or otherwise made a part of any such order and shall be enforceable to the same extent as any other portion of such order or decree . . . .”