author: Hull, J.

text:
    Blanche E. Lampasona v. Steve Jacobs
    (3517)
    Dupont, C. J., Hull and Daly, Js.
    Argued April 30 —
    decision released June 10, 1986

      Joseph E. Moukawsher, for the appellant (plaintiff).

      John C. Driscoll, for the appellee (defendant).
   Hull, J.

The plaintiff, the owner of a mobile home park, brought a summary process action against the defendant. The complaint alleged that the defendant was occupying and in possession of lot number ten in the mobile home park and that the defendant had no right or privilege to occupy the premises. The complaint also alleged that on April 12, 1984, the plaintiff had served on the defendant a notice to quit the premises on or before April 24,1984, and that, although the time designated in the notice had passed, the defendant refused to vacate. The plaintiff therefore sought judgment for possession of the premises.

On June 26, 1984, the defendant moved to dismiss the plaintiffs complaint claiming that the notice to quit dated April 12, 1984, was not legally sufficient. The defendant then argued that since proper statutory notice to quit is a condition precedent to the bringing of a summary process action under General Statutes § 47a-23, the court lacked jurisdiction over the subject matter of the complaint. On July 11, 1984, the court, Hurley, J., denied the motion without opinion. On July 10,1984, the defendant again moved for dismissal claiming the identical grounds but adding the claim that the notice given was also defective because the plaintiff had not complied with the sixty days’ notice requirement of General Statutes § 21-80. This motion to dismiss was granted by the court, Walsh, J., on July 26, 1984.

In granting the motion to dismiss, the trial court relied on that portion of General Statutes § 21-80 (b) which provides: “(3) Notwithstanding the provisions of section 47a-23, termination of any tenancy in a mobile manufactured home park shall be effective only if made in the following manner: . . . (B) By the owner giving the resident at least sixty days’ written notice, which shall state the reason or reasons for such termination . . . .” The court found that the lack of such sixty days notice, which was apparent on the record and agreed upon by the parties in oral argument, deprived the court of jurisdiction to hear the matter and, accordingly, granted the motion to dismiss. The plaintiff appeals from the judgment of dismissal raising two claims: (1) that the court erred in granting the defendant’s motion to dismiss for want of subject matter jurisdiction because in so doing the court lopked beyond the question of subject matter jurisdiction and improperly dismissed the case on its merits; and (2) that the court violated several of the plaintiffs constitutional rights by ruling that the defendant was a “resident” under General Statutes § 21-64 (5) whose “tenancy” could be terminated only after sixty days’ notice under General Statutes § 21-80.

A careful scrutiny of the complaint and the procedure followed reveals that the court erred in granting the motion to dismiss for reasons not raised below or briefed by the plaintiff. We find plain error and resolve the case on this basis despite the plaintiff’s failure to raise the issue. Practice Book § 3063. As a result, we do not reach the claims the plaintiff did raise in her appeal.

Practice Book § 143 provides in pertinent part that “[t]he motion to dismiss shall be used to assert (1) lack of jurisdiction over the subject matter. . . . This motion shall always be filed with a supporting memorandum of law, and where appropriate, with supporting affidavits as to facts not apparent on the record. ” (Emphasis added.) Here, no supporting affidavits were filed. The court not only had no affidavits before it, it also took no evidence. Nor is there anything in the complaint that would justify the court’s apparent determination that the defendant was a resident of the park so as to trigger application of General Statutes § 21-80. The complaint, as stated earlier, alleged only that the defendant was occupying and was in possession of lot number ten and that the defendant had no right or privilege to occupy that lot. The allegation of occupancy and possession of a lot does not invoke the definition of a “resident” found in General Statutes § 21-64 (5) which defines a resident as “a person who owns, or rents and occupies, a mobile manufactured home in a mobile manufactured home park.” (Emphasis added.) Defense counsel did assert that the defendant would be prepared to offer testimony that he purchased the mobile home, and that the prior owner requested permission for approval of the plaintiff as a tenant in accordance with the procedure set out in General Statutes § 21-79, but received no response. Counsel argued that by complying with General Statutes § 21-79, the plaintiff became a resident under the definition in General Statutes § 21-64 (5), and was, therefore, entitled to sixty days’ notice as specified in General Statutes § 21-80. The arguments of counsel, however, no matter how persuasive, do not constitute facts. Nor can the court assume jurisdictional facts by osmosis.

At the time the trial court granted the motion to dismiss, an issue of fact on which the jurisdiction of the court depended existed: whether the defendant was a resident within the meaning of General Statutes § 21-64 (5) so as to be entitled to sixty days’ notice to quit possession. “ ‘A motion to dismiss may . . . raise issues of fact and would, therefore, require a . . . hearing [to determine the facts], . . . [Affidavits are insufficient to determine the facts unless, like the summary judgment, they disclose that no genuine issue as to a material fact exists.’ 1 Stephenson, Conn. Civ. Proc. (2d Ed. 1982 Sup.) § 108d p. S 73. ‘ “In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly [397 U.S. 254, 269, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)].’ Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 574, 409 A.2d 1020 (1979). When issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses. The trial court erred in not holding such a hearing.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 56, 459 A.2d 503 (1983); accord Garden Mutual Benefit Assn. v. Levy, 37 Conn. Sup. 790, 437 A.2d 141 (1981).

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Although not alleged in the complaint, the parties agree, and it is apparent from the record, that the action was for summary process under General Statutes § 47a-23 which contains an eight day notice requirement.

       The trial court’s action on this motion is not challenged in this appeal.

       In his memorandum of decision on the defendant’s second motion to dismiss, Judge Walsh concluded that Judge Hurley’s ruling on the earlier motion to dismiss was intended to address only the narrow issue of whether or not eight days’ notice was given as required by General Statutes § 47a-23.

       We do not reach the question whether, since jurisdictional facts are challenged by the defendant in this case, the plaintiff had the burden to prove those facts. See Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 54, 459 A.2d 503 (1983); Moller & Horton, Connecticut Practice, Superior Court Civil Rules (2d Ed.) Comment on § 143.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert Marchand et al. v. Ralph Presutti et al.
    (4641)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs May 1 —
    decision released June 10, 1986

      Anthony A. Tomaro filed a brief for the appellants (defendants).

      Michael Schless filed a brief for the appellees (plaintiffs).
   Per Curiam.

The defendants are appealing from the judgment of the trial court in favor of the plaintiffs. The defendants claim that the evidence introduced at trial was insufficient to support the court’s findings of fact and conclusions of law that the defendants, by fraudulent misrepresentation of a material fact, intended to and did induce the plaintiffs to purchase certain property. The defendants claim further that the evidence was insufficient to support the amount of damages awarded to the plaintiffs.

The trial court found the following facts. The plaintiffs, Robert Marchand and Jean Marchand, entered into an agreement with the defendants, Ralph Presutti and Frances Presutti, wherein the plaintiffs agreed to purchase the defendants’ home. Prior to entering into the purchase agreement, the plaintiffs inspected the premises on at least three occasions during the course of which they asked the defendants many questions with regard to various aspects of the property. One area of inquiry concerned the existence of a sump hole visible in the basement floor. In response to the plaintiffs’ inquiry, the defendants stated that the sump hole provided drainage for a water problem due to depressed cellar window wells. The defendants stated that they had owned the property since 1972, stored electronic and radio equipment in the basement, which equipment had never been water damaged, and that they had not experienced any more serious water problems in the cellar. The defendants did not tell the plaintiffs that in 1977, the sewer drain pipe had backed up and flooded the basement. The result of this was that the defendants were required to engage a commercial service to clean out the drain. Several “bags” of roots and other material were removed from the pipe.

The plaintiffs purchased the property pursuant to their agreement with the defendants. Shortly after they moved in, they experienced serious basement flooding and roof leakage with resultant water damage to their personal property. The plaintiffs then brought suit claiming that the defendants made false representations as to the condition of the property upon which the plaintiffs relied to their detriment.

In its memorandum of decision, the trial court expressly found that the defendants’ failure to tell the plaintiffs about the 1977 flooding due to the back-up of the sewer drain, although an innocent misrepresentation, amounted to a fraudulent nondisclosure upon which the plaintiffs relied to their detriment. The plaintiffs were awarded $1750.

The crux of a fraudulent nondisclosure is “ ‘a failure to disclose known facts and ... a request or an occasion or circumstance which imposes a duty to speak.’ ” Duksa v. Middletown, 173 Conn. 124, 127, 376 A.2d 1099 (1977); Wedig v. Brinster, 1 Conn. App. 123, 130-33, 469 A.2d 783 (1983), cert. denied, 192 Conn. 803, 472 A. 2d 1284 (1984). In this case, the trial court found that, when asked about the sump hole, the defendants had a duty to disclose the flooding incident of 1977. The court’s further finding that such nondisclosure was fraudulent is supported by the circumstances in this case and cannot be disturbed by us on appeal.

The trial court’s findings and conclusions of fact cannot be reviewed by us on appeal. We will not retry the issues or re-examine the credibility of witnesses. Practice Book § 3060D; Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). The trial court’s findings as to liability were not clearly erroneous.

The defendants assert that the trial court erred in finding damages without sufficient evidence to support them. Our review indicates that the award of $1750 was based on the evidence and was well within the court’s discretion. Chykirda v. Yanush, 131 Conn. 565, 568, 41 A.2d 449 (1945). A trial court’s exercise of discretion will not be interfered with unless the exercise was a manifest abuse of discretion. Sturman v. Socha, 191 Conn. 1, 7, 463 A.2d 527 (1983).

Our examination of all the evidence in this case fails to disclose that the trial court acted other than in accordance with the law in its findings as to liability and damages.

There is no error.


text:
    James Piccolo et al. v. Alice Galer Weimann, Administratrix (Estate of Robert P. Weimann, Jr.)
    (4055)
    Dupont, C. J., Hull and Spallone, Js.
    Submitted on briefs May 1 —
    decision released June 10, 1986

      William J. Nulsen filed a brief for the appellant (defendant).

      William J. Cousins filed a brief for the appellees (plaintiffs).
   Per Curiam.

The defendant is appealing from the judgment rendered for the plaintiffs after a trial to a state trial referee, claiming that the judgment was unsupported by the evidence.

The court found the facts to be substantially as follows. The plaintiffs, James Piccolo and Louis Piccolo, sometime in 1964, entered into a joint venture with the defendant’s decedent, Robert P. Weimann, Jr., who was in the business of acquiring, restoring and selling works of art. The essence of the joint venture was an agreement between the plaintiffs and Weimann which provided that the plaintiffs would contribute to the financing of the purchase of works of art and share in the profits when they were sold. The proceeds would be distributed among the joint owners in accordance with the share of each in the ownership of the particular work of art being sold. This arrangement continued for many years and terminated upon Weimann’s death on November 15, 1978.

The defendant, Alice G. Weimann, was made administratrix of the decedent’s estate. The plaintiffs made timely claims against the decedent’s estate but were not satisfied with the resolution of these claims made by the defendant. They instituted suit against the defendant claiming as damages the value of their ownership in certain specific works of art subject to the joint venture agreement. After a full trial, judgment in the amount of $12,262, plus costs, was rendered in favor of the plaintiffs. In response to the defendant’s motion for further articulation, the trial referee set forth in detail his specific findings of the value of the plaintiffs’ share of ownership in particular works of art. These values, when totalled, equalled the amount of the judgment.

The defendant, in substance, disagrees with the factual findings of the trial referee. On review, this court cannot and will not retry the case. We are limited to a determination of whether the decision made is legally and logically consistent and supported by the evidence. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Brey v. Brey, 1 Conn. App. 397, 399, 472 A.2d 354, cert. denied, 193 Conn. 806, 477 A.2d 659 (1984). This court will not substitute its view of the facts for that of the trial court, nor will it reverse the decision of that court unless the decision is found to be “clearly erroneous in light of the evidence and the pleadings in the record taken as a whole.” Damora v. Christ-Janer, 184 Conn. 109, 113, 441 A.2d 61 (1981); Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984).

The facts found by the trial referee are amply supported by the evidence submitted in this case and the judgment rendered by the trial court is in accordance with the law.

There is no error.


text:
    Christian Brothers, Inc. v. South Windsor Arena, Inc., et al.
    (4274)
    Dupont, C. J., Hull and Daly, Js.
    Argued May 1 —
    decision released June 10, 1986

      Richard I. Cohen, for the appellants (defendants).

      Bianca D. Mackey, with whom, on the brief, was Donald R. Holtman, for the appellee (plaintiff).
   Per Curiam.

The named defendant (South Windsor) and the defendants, the Arena Operating Company, Inc. (Arena), and Richard Grigorian, appeal from the judgment the trial court rendered against them in accordance with the report issued by the attorney referee before whom the case was tried. The defendants claim that the court erred in denying their objections to the report, and in rendering judgment in accordance with it, because the report contained an erroneous conclusion of law: that South Windsor’s separate corporate identity could be ignored and Grigorian and South Windsor could be held liable for the corporate debt of Arena under the doctrine of “piercing the corporate veil.” The defendants also claim that the referee erroneously found that they had agreed to pay the plaintiff service charges at the rate of 18 percent per year on any outstanding balance on their debt to the plaintiff. We find error in part.

In the attorney referee’s meticulous and well reasoned report, he found that the plaintiff was owed $7632.76 for hockey sticks it sold to Arena. The referee also found that the defendant South Windsor was merely an extension of Arena and that Grigorian had control over the management of both corporations. Accordingly, it concluded that South Windsor and Grigorian should be held liable under either the “instrumentality rule” or the “identity rule” as promulgated in the landmark case of Zaist v. Olson, 154 Conn. 563, 575, 227 A.2d 552 (1967). The referee also awarded 18 percent interest apparently based on a finding that the behavior of the parties gave rise to an implied contract that the defendant would pay the plaintiff an 18 percent charge on any outstanding balance it owed. On June 14, 1985, the trial court, Stoughton, J., in accordance with the referee’s report, rendered judgment against all three defendants in the amount of $7632.76 plus interest at the rate of 18 percent per annum from December 2, 1979, to the date of judgment.

The defendants’ first claim is that the referee erroneously applied the instrumentality or identity rule to pierce the corporate veil and find them liable for the debts of Arena. Although the defendants strenuously assert to the contrary, it is quite clear that this claim of error is primarily an attempt to have us reevaluate the referee’s factual findings concerning Grigorian’s involvement in both corporations and South Windsor’s relationship to Arena. This court, of course, does not retry the facts, but merely examines the trial court’s factual findings to determine whether they are clearly erroneous. Jones v. Litchfield, 1 Conn. App. 40, 42, 467 A.2d 936 (1983), cert. denied, 192 Conn. 802, 470 A.2d 1218 (1984). We note in this regard that “ ‘[t]he circumstances which have been considered significant in an action to disregard the corporate entity have rarely been articulated with any clarity. Perhaps this is true because the circumstances necessarily vary according to the facts of the particular case. Therefore, each case in which the issue is raised should be regarded as sui generis, to be decided in accordance with its own underlying facts. Since the issue is thus one of fact, its resolution is particularly within the province of the trial court and such resolution will be regarded as presumptively correct and will be left undisturbed on appeal unless it is clearly erroneous.’ (Footnotes omitted.) 1 Fletcher, Cyc. Corp. (Perm. Ed. 1981 Sup.) § 41.3, p. 38 . . . .” Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 562, 447 A.2d 406 (1982) (Borden, J., dissenting). With this observation in mind, we have carefully considered the referee’s findings of facts and have determined that they are not clearly erroneous.

We also conclude that the referee correctly applied the relevant legal principles to the facts as he found them. In his report, the referee, citing Angelo Tomasso, Ins. v. Armor Construction & Paving, Inc., supra, Zaist v. Olson, supra, and Hoffman Wall Paper Co. v. Hartford, 114 Conn. 531, 159 A. 346 (1932), properly noted that the key factor in any decision to disregard the separate corporate entity is the element of control or influence exercised by the individual sought to be held liable for corporate actions. Finding such control, the referee concluded that liability should be imposed on South Windsor and Grigorian. Where the record on appeal discloses that the trial court’s conclusions were legally and logically correct, were based on factual findings which were supported by the evidence and were not clearly erroneous, no error will be found. Southington v. Major Machinery Corporation, 1 Conn. App. 253, 255, 470 A.2d 1230 (1984); Vitale v. Crocco, 1 Conn. App. 184, 185, 469 A.2d 793 (1984). Here, the referee’s factual findings, which were not clearly erroneous, fully justified his legal conclusion that South Windsor and Grigorian should be held liable for the debts of Arena. Accordingly, the court did not err in accepting the referee’s report.

The defendants further claim that the referee’s recommendation that the plaintiff be awarded 18 percent interest was erroneous because there was no evidence that the parties had ever agreed to such charges. “It is fundamental that ‘[ijnterest by our law is allowed on the ground of some contract express or implied to pay it, or as damage for the breach of some contract, or the violation of some duty.’ ” Ruscito v. F-Dyne Electronics Co., 177 Conn. 149, 163, 411 A.2d 1371 (1979). While not finding an express contractual provision requiring the defendant to pay an 18 percent service charge on any overdue balance, the referee apparently concluded that there was an implied contract to that effect. It appears that this conclusion was based on the referee’s finding that Grigorian “acknowledged in his testimony that service charges were made by the plaintiff.” There was, however, no finding that Grigorian ever agreed to such charges. In fact, Grigorian clearly testified that he did not. Nor did the referee make any other factual findings in his report which would support a conclusion that the defendants had assented to the 18 percent interest. Accordingly, we agree with the defendants that the trial court erred in accepting this portion of the referee’s report and in awarding the interest.

There is error only in the awarding of interest, the judgment is set aside and the case is remanded with direction to render judgment for the plaintiff to recover $7632.76 plus costs.

       This claim of error contained four subordinate issues: (1) whether the referee’s report erroneously found that South Windsor had “taken over” Arena; (2) whether the referee’s report erroneously found that South Windsor made no changes of a substantial nature in the business operation; (3) whether the referee’s report misapplied the “instrumentality rule” of corporate law so as to hold South Windsor and Richard Grigorian liable for a corporate debt incurred by Arena one and one-half years before; and (4) whether the referee’s report misapplied the “identity rule” of corporate law so as to hold South Windsor and Richard Grigorian liable for a corporate debt incurred one and one-half years before by Arena.

       We note that the report did not recommend interest at the statutory rate for wrongful detention of the money due the plaintiff. “ ‘The real question in each case is whether the detention of the money is or is not wrongful under the circumstances.’ Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971).” Milgrim v. Deluca, 195 Conn. 191, 201, 487 A.2d 522 (1985). On the state of this record, we need not determine whether the awarding of interest under such a standard would have been appropriate in this case.


author: Spallone, J.

text:
    State of Connecticut v. Robert Jenkins
    (4337)
    Borden, Spallone and Bieluch, Js.
    Argued May 6 —
    decision released June 10, 1986

      Donald D. Dakers, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, assistant state’s attorney, and James G. Clark, deputy assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant takes this appeal from the judgment rendered after his conviction by a jury of the crimes of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), and risk of injury to a minor child in violation of General Statutes § 53-21. He raises only one claim of error, that the trial court abused its discretion in admitting testimony by his wife that, subsequent to the defendant’s arrest, she found magazines in the defendant’s private room in the basement of their home which contained sexual pictures involving children.

In order to address the issue raised by the defendant, we do not find it necessary to present a detailed description of the facts of this case except to state that the defendant is the natural father of the victim, his daughter, who was nine years old at the time of the assaults. There was no evidence that the defendant showed the magazines to the victim. The defendant’s claim is that his wife’s testimony was irrelevant and was prejudicial enough to require reversal'. We disagree.

The testimony allowed by the court was merely the witness’ oral representation that she found several different magazines in the defendant’s room, some of which depicted naked girls about the same age as the victim. The magazines themselves were not produced nor were they offered as evidence. The witness’ testimony was given in only a few lines. We conclude that the court’s ruling admitting the testimony as relevant to the issues in the case was not erroneous.

Rulings on relevancy are particularly within the province of the trial court and upon review every reasonable presumption should be given in favor of the trial court’s ruling. State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982); State v. Ryan, 182 Conn. 335, 337,438 A.2d 107 (1980). The trial court is vested with 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). “ ‘ “No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teaching of 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). In State v. Aspinall, 6 Conn. App. 546, 554, 506 A.2d 1063 (1986), we stated that “[t]he 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, the trial court, in exercising its broad discretion, could legally act as it did. 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). As the state contends, the evidence was probative of the fact that the defendant regarded young girls as objects of sexual interest, and was thus relevant to the charges against him. See State v. Manluccia, 2 Conn. App. 333, 335-36, 478 A.2d 1035 (1984). Under the circumstances present here, we cannot say that the trial court, in admitting the testimony by the defendant’s wife, abused its discretion in deciding that the evidence was relevant or in weighing its probative value against its prejudicial effect.

There is no error.

In this opinion the other judges concurred.

       The witness also testified that she found “one homosexual magazine, and . . . Playboys.”


text:
    State of Connecticut v. Kenneth Wayne Cobbs
    (4141)
    Borden, Spallone and Bieluch, Js.
    Argued May 7 —
    decision released June 17, 1986

      Michael A. Connor, Jr., public defender, for the appellant (defendant).

      Thomas M. Stephens, special assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant was tried by a jury on a charge of murder and was convicted on the lesser included offense of manslaughter in the first degree, a violation of General Statutes § 53a-55 (a) (1). He takes this appeal from the judgment rendered after his conviction.

The sole issue raised by the defendant is his claim that the trial court erred in denying his motion to suppress a statement that the defendant made to the police in his home.

The jury could reasonably have found the following facts. Just after midnight on January 7,1984, a game of dice was in progress under a street lamp on Cabot Street in Hartford. After a particular roll of the dice, a request for payment was made by one of the players, Dennis Casey. One of the other players, Philip Grant, refused to pay and a fight ensued. Casey punched Grant in the face. Grant cut Casey’s hand with a knife. Casey took a bat from a bystander and then chased Grant down the street. Grant was looking for a stick to use as a weapon to counter the bat in Casey’s hands. As Casey chased Grant down the street, Casey was stopped by Michael Walker and the victim, Stanley Williams. Walker and Williams attempted to remove the bat from Casey’s hands. As Casey, Walker and Williams struggled for the bat, a crowd gathered around them. The defendant, Kenneth Cobbs, who until this point was not involved in the fight, walked up to Williams and stabbed him in the back, saying, “Get off him.” Williams stumbled away from the crowd and later died from the stab wound. The defendant walked away from the scene wiping his knife.

At about 1 a.m., after the victim was taken to the hospital, the police began their investigation of the incident. After interviewing several witnesses, the police began to look for the defendant. At about 3:30 a.m., that same morning, Lieutenant Joseph Croughwell and three other Hartford police officers went to the home of the defendant’s mother. Some lights were on in the house and as the officers approached the door intending to knock on it, one of the officers was attacked by a large german shepherd dog which caused a commotion. Hearing the disturbance, the defendant’s mother opened the door. Croughwell approached her and asked permission to enter, saying, “Let me talk to you” and “Let me come in and talk to you.” She gave the officers permission to enter, saying, “Okay, what are you doing with my dog.”

As the officers entered the house, Croughwell stated: “We’re looking for Kenneth Cobbs,” or “We’re looking for your son.” Immediately after that statement was made, and just as the officers crossed the threshold into the house, the defendant appeared, and stated, “I’m the one you’re looking for.” The defendant was arrested and was taken to the police station. No other statements were made by the police before the arrest and neither his mother nor the defendant resisted the entry of the police into the home.

Prior to the trial, the defendant moved to suppress the statement he made to the police upon their entry into his home, claiming the statement was a result of illegal police action. The trial court denied the motion after a hearing. In its charge to the jury, the court stated that the jury could consider the statement as consciousness of guilt. We find no error in the court’s ruling concerning this motion.

We agree fully with the state’s argument that the arrest of the defendant in his home was legal under the fourth amendment. The police entered the house with the consent of the defendant’s mother, an occupant of the house, and such consent was not the result of coercion or deceit. Although under the fourth amendment a warrantless entry into a suspect’s home in order to make a routine felony arrest is presumptively unreasonable; Payton v. New York, 445 U.S. 573, 586, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); a search which has been undertaken pursuant to consent of an occupant of the premises constitutes a waiver of the warrant requirement. United States v. Matlock, 415 U.S. 164, 169, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974); State v. Gallagher, 191 Conn. 433, 437, 465 A.2d 323 (1983). Whether consent to entry was given voluntarily is a question of fact to be determined from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 221, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); State v. Gallagher, supra, 444; State v. Cardona, 6 Conn. App. 124, 134, 504 A.2d 1061 (1986). No one factor is controlling on the question of voluntariness; Schneckloth v. Bustamonte, supra, 226; which is normally to be decided by the trial court based on the evidence and the reasonable inferences drawn from that evidence. State v. Jones, 193 Conn. 70, 79, 475 A.2d 1087 (1984). The determination to be made is whether the will of the consenting individual was overborne, or whether the consent was his unconstrained choice. Schneckloth v. Bustamonte, supra, 225. The state must establish that the consent was voluntary and not the product of coercion or acquiescence to a claim of lawful authority. State v. Jones, supra; State v. Cardona, supra.

We note that the defendant’s mother did not testify at the hearing on the motion to suppress the statement. The officer’s testimony was uncontradicted and although this fact alone is not controlling, the trial court obviously found the officer’s testimony credible when it implicitly found consent to enter by its denial of the defendant’s motion. State v. Jones, supra. This finding may be reversed on appeal only if it is clearly erroneous. Practice Book § 3060 D; State v. Jones, supra, 79-80. We cannot say, under the facts and circumstances in this case, that the trial court’s finding that the consent for the police to enter the home was voluntary was clearly erroneous.

The defendant’s argument that his statement flowed from an illegal arrest is without merit. The statement was made as the police entered the home, and the defendant conceded at oral argument in this court that he was not under arrest when he made the statement.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    State of Connecticut v. Benjamin F. Ralston, Jr.
    (3741)
    Dupont, C. J., Borden and Spallone, Js.
    Argued March 11 —
    decision released June 17, 1986

      C. Robert Satti, Jr., assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellant (state).

      Anthony J. DePanfilis, with whom was Margaret M. Vallerie, for the appellee (defendant).
   Borden, J.

The state appeals, with the permission of the trial court, from the judgment dismissing with prejudice the information against the defendant following the suppression of wiretap evidence. The issues involve: (1) the sufficiency of the affidavits accompanying the applications to support the findings of probable cause for the issuance of the wiretap orders; (2) whether probable cause was required as to this defendant, whose telephone was not the subject of the orders but who was one of the named targets of the taps; and (3) whether General Statutes § 54-41c (7) precludes from the probable cause determination information discovered more than twenty days prior to the date of the wiretap application. We find error and remand for further proceedings.

The defendant was charged with four counts involving possession, possession with intent to sell and possession with intent to use various illicit drugs, and with three counts of illegal possession of a pistol. These charges derived principally from evidence gathered pursuant to a search warrant directed at the defendant’s residence. Although this record is not clear, the charges also apparently derived from evidence gathered pursuant to a warrantless search of his car.

The defendant received the statutory notice that his telephone conversations had been intercepted pursuant to wiretap orders directed at the business telephones and the residence telephone of James Sayball, and pursuant to extensions of those original orders. He moved to suppress all the evidence gathered as a result of these searches on the basis, inter alia, that it derived from the original wiretap orders which were invalid. In the trial court, the state conceded that if the original wiretap orders were invalid, the evidence against the defendant was suppressible. The court ruled orally, without elaboration, that the original wiretap applications were facially invalid, and it suppressed the evidence. Based on the state’s concession, this was the only determination which the trial court made, and it is the only one which we review in this appeal. Upon the state’s representation that it would be unable to proceed against the defendant without the suppressed evidence, the court dismissed the information with prejudice. This appeal followed.

I

General Statutes § 54-41c requires that a wiretap application include thirteen specified sets of information which will permit the three judge wiretap panel to make a finding of probable cause, pursuant to General Statutes § 54-41d, as to nine specified criteria. See State v. Ross, 194 Conn. 447, 456-62, 481 A.2d 730 (1984). Because the trial court issued no memorandum of decision, orally or in writing, and because the state did not move for articulation, it would therefore arguably be necessary to review all twenty-two items. The parties have, however, narrowed the issues in this appeal to three, and our review of the two original wiretap applications and their accompanying affidavits satisfies us that all the other criteria, required by General Statutes §§ 54-41c and 54-41d, were fully met.

By two essentially similar applications dated October 14,1983, the state’s attorney for the Fairfield judicial district requested authorization to wiretap two telephone facilities: two telephone lines located at the Monroe Fish Market on Main Street in Monroe, Connecticut, which was owned and operated by Sayball, and one telephone line located at Sayball’s residence, on Old Newtown Road, in Monroe. The applicant claimed that the telephone lines were being used for the illegal sale of narcotics and of controlled substances. The applicant sought permission to intercept the conversations of the following persons: James Sayball, also known as “Raccoon”; Francis Scarano; Edward Lipnickas, Jr.; Michael J. Desmond; John L. Uberti; Carl Willsey; Benjamin F. Ralston, Jr., the defendant in this case; and Frederick Cavuoto. The applicant named these individuals as persons who have committed or are committing the offenses, or whose intercepted conversations may provide evidence of such offenses. On the basis of the applications and their underlying affidavits, a three judge panel issued wiretap orders on October 17, 1983.

Each application was supported by essentially the same affidavit of Inspector John F. Solomon, of the Connecticut division of criminal justice. The critical portions of Solomon’s twenty-six page affidavit are as follows: On or about June 16, 1980, Sergeant Norman Mercier, commanding officer of the Monroe police department, received, from “a reliable and upstanding citizen,” information about a large-scale narcotics operation involving James Sayball at his business establishment known as the Monroe Fish Market on Main Street in Monroe, Connecticut. The informant, the reliability of whom no independent information was supplied, purportedly was acting as a concerned citizen who wanted to pass on information regarding the drug trafficking activities of Sayball, of Mark Ricca and of unknown others. The informant also told Mercier that he had been told by someone with personal knowledge that Sayball was transporting cocaine from outside Connecticut to the Monroe Fish Market, where he would supply others. The informant told Mercier that Ricca got his supply of cocaine from Sayball. Mercier told Solomon that the informant’s information was corroborated by a known and reliable informant who has in the past supplied information proven accurate by Monroe police department investigation and inquiries.

In December, 1982, Detective William Hughes of the Monroe police department received information from a confidential and reliable source, who had provided accurate information in the past, but was not in December speaking from personal knowledge, that Sayball was distributing cocaine of high quality. On December 31,1982, surveillance of the Monroe Fish Market disclosed that a 1980 Ford pick-up truck registered to Condor, Inc., was at the Monroe Fish Market. A Greenwich police department narcotics officer, Frank Garr, told Solomon that Condor, Inc., or “The Condor,” was known to the Greenwich police department as a tug boat business. Garr had been told by federal agents of the United States Customs Service and of the United States Coast Guard that The Condor was suspected of drug smuggling in Long Island Sound.

In January, 1983, Mercier and Solomon interviewed a confidential source who had given information in the past which had led to at least one arrest and conviction. This source, who lives near Sayball, told Mercier and Solomon that on several occasions in the previous several months he had seen, in the early morning hours of various days of the week, including Saturdays and Sundays, excessive traffic of campers, vans, pick-up trucks and passenger cars pull to the top of Sayball’s driveway and back to the rear of a barn located at the rear of Sayball’s property. Another confidential source who lives in the same general area confirmed these activities.

On October 1, 1983, Solomon received from a federal drug enforcement administration (DEA) agent, Dale J. Seymour, copies of telephone toll call records for Sayball’s telephone at his residence, and for one of the telephones at the Monroe Fish Market. These were for the period of January 17, 1983, through July 15, 1983. Seymour had obtained federal court orders on September 16, 1983, and September 27, 1983, to install pen registers for Sayball’s residence phone and for the two phones used at the Monroe Fish Market. Also, on September 30, 1983, Solomon received from the same DEA agent copies of telephone toll call records for the residence and business of Edward Lipnickas, Jr., for the period of March 19, 1983, through August 19, 1983. It is the information disclosed from an analysis of these toll records and pen register tapes which form much of the factual underpinning of the question of probable cause in this case.

For a clearer understanding of the import of the toll call and pen register information, we have chosen to divide the information according to the persons and establishments indicated by the toll call data and the pen register as having been called by and as having called the Sayball business and residence telephones.

Edward Lipnickas, Jr.

During the period January 17,1983, through July 15, 1983, there were seven calls from Sayball’s residence to the residence of Edward Lipnickas, Jr., in Milford, and nine calls from Sayball’s residence to the New World Pet Shop, in Milford, owned and operated by Lipnickas. From March 19,1983, through August 19, 1983, there were ninety-six calls from Lipnickas’ residence and business to Sayball’s residence and business. Lipnickas was previously convicted of possession of cocaine with intent to sell and possession of marihuana, based on a seizure from him and his apartment on February 19, 1979, by the Bridgeport police department, of 1.4 ounces of cocaine and 8.96 ounces of marihuana.

A confidential and reliable informant of a Milford police department drug officer told Sergeant Gerald Hanahan and Detective William Tripp on March 18, 1983, that Lipnickas was actively involved in selling cocaine from his pet shop. The Milford police department told Solomon that the informant personally saw Lipnickas and his wife cutting and packaging cocaine at their Milford residence, and that he had been at the pet shop when Lipnickas had sold cocaine to persons.

Benjamin F. Ralston, Jr., The Defendant

From January 17, 1983, through July 15, 1983, twenty-five calls were made from Sayball’s residence to Auto-Technics, Inc., in Norwalk, owned and operated by Ralston. From September 29, 1983, through October 4,1983, twelve calls were made from Sayball’s telephones to telephone facilities of Ralston. Ralston was previously convicted of possession of cocaine, based on an October 19,1980 arrest in Trumbull in which he was found in possession of approximately one ounce of cocaine.

On September 2, 1983, Detective James Adams, a narcotics officer with the Norwalk police department, told Solomon that in August, 1983, a confidential and reliable informant bought cocaine from Ralston at his place of business in Norwalk. Adams said that he was in the informant’s presence when the informant called Ralston, and that he overheard Ralston tell the informant that Ralston would not sell him any more cocaine until the informant paid for the cocaine already sold to him by Ralston. The informant also related to Adams that Ralston said that he had a limitless source of drugs. The informant said that he could purchase drugs from Ralston either at his home or at his place of business. Surveillance of Sayball at his residence during the period of January, 1983, through August, 1983, disclosed either Sayball or his wife, Norma Sayball, operating a Lincoln automobile registered to Ralston’s business, Auto-Technics, Inc.

John L. Uberti

During the period January 17, 1983, through August 15,1983, there were ninety-five calls from Sayball’s residence to the residence of John L. Uberti in Milford and three calls from the Monroe Fish Market to Uberti’s residence. From September 29,1983, through October 4,1983, there was one call from Sayball’s telephone facilities to a telephone facility of Uberti. On October 4, 1982, Uberti had been arrested by the Connecticut state police on a charge of possession of narcotics with intent to sell, and was subsequently convicted of illegal possession of a controlled substance.

Carl A. Willsey

During the period January 17,1983, through July 15, 1983, there were eighteen calls from Sayball’s residence to a telephone listed to Carl A. Willsey Co., in Greenwich. On January 19, 1973, Carl A. Willsey had been convicted of sale of narcotics and of aiding and abetting the sale of narcotics.

Francis Scarano

From January 17,1983, through July 15,1983, there were seventy-two calls from Sayball’s residence to the telephone facility of Francis Scarano in Meriden, and four calls from the Monroe Fish Market to the same telephone facility of Scarano. From July 29, 1983, through October 4, 1983, there were three calls from Sayball’s telephone facilities to Scarano’s telephone facility.

DEA intelligence reports provided to Solomon indicated that Scarano was believed to be involved in narcotics trafficking in Connecticut. Intelligence reports in 1982 indicated that Scarano was flying cocaine into the Meriden airport from Canada. DEA investigation confirmed that Scarano had an airplane at the Meriden airport. Surveillance of the Monroe Fish Market, by Detective Hughes, at 6:30 p.m. on September 7,1983, disclosed a motor vehicle, registered in New Hampshire to Scarano, parked in front of the Monroe Fish Market; the same vehicle was observed at Sayball’s residence on September 23, 1983, at 5:40 p.m.

Michael J. Desmond

From January 17,1983, through July 15,1983, there were 134 calls from Sayball’s residence to the residence of Sarah Desmond and Michael J. Desmond, her husband, in Stamford, Connecticut, and three calls from the Desmond residence to the Monroe Fish Market. From September 29, 1983, through October 4, 1983, there were five calls from Sayball’s telephone to telephone facilities registered to Sarah Desmond. Michael Desmond operates “The Condor” tugboat operation.

DEA had suspected Michael J. Desmond of drug smuggling since early 1979, as the then owner of the vessel, “Stor Fisk.” Surveillance on September 14, 1983, between 3:30 and 4:30 p.m. at Sayball’s residence in Monroe disclosed a Toyota automobile. The Toyota was registered to Sarah Desmond at a post office box address listed to both Sarah and Michael J. Desmond.

Mark Ricca

On September 9,1983, Solomon interviewed a confidential source made known to him by the confidential source earlier described as a reliable and upstanding citizen. This source told Solomon the following: During the two year period of 1980 and 1981, the source knew Sayball, also known as “Raccoon,” who operated the Monroe Fish Market. The source was present on several occasions when Mark Ricca, who then lived in Fairfield, obtained cocaine from Sayball at the Monroe Fish Market, and was present on several occasions when Ricca made telephone calls to the Monroe Fish Market, spoke with Sayball, and then went with Ricca to the Monroe Fish Market where Ricca bought cocaine from Sayball. The source was present on a few occasions during the same period when Ricca called Sayball at his residence in Huntington, Connecticut, at that time, and this source accompanied Ricca to Sayball’s residence in Huntington after the telephone calls and saw Ricca obtain cocaine from Sayball. The land records of Monroe indicate that Sayball bought his Monroe residence in September, 1981. The Connecticut motor vehicles department records indicate that during the period the source reported being in Sayball’s house in Huntington, Sayball had motor vehicles registered to himself at 111 Mohegan Road, Huntington, Connecticut.

Frederick Cavuoto

From September 29, 1983, until October 4, 1983, there were twenty-nine calls from Sayball’s telephone facilities to a telephone facility of Frederick Cavuoto in Trumbull. Cavuoto is presently charged with conspiring to sell cocaine and possession of cocaine, having been arrested on February 29, 1980, by the Connecticut state police. Federal Bureau of Investigation records show that Cavuoto was convicted in 1979 in federal court in Florida with conspiracy to smuggle marihuana. DEA records indicate that Cavuoto is considered a major cocaine trafficker in southwestern Connecticut.

On or about February 15, 1982, Solomon was notified by Investigator Robert Jones of the Bristol County, Massachusetts, District Attorney’s office that a confidential and reliable informant had told that office that a “mother ship” was going to off-load marihuana in Bridgeport in the very near future. The informant was told by Patrick Menillo, Jr., that it would be off-loaded at a Bridgeport dock where a seafood market was located and that the dock was controlled by people associated with the smuggling venture. The informant also said that the load would then be stored in a barn behind an individual’s house, north of Bridgeport, who was in the fish business and who was directly involved in the smuggling venture. The town of Monroe is north of Bridgeport, and Sayball’s residence in Monroe has a barn behind it. Solomon’s investigation indicated that the dock involved was used by associates of the Capoziello family, some of whom have been associated with Sayball. Menillo had been convicted in 1975 with Cavuoto of conspiring to smuggle large quantities of marihuana into the United States from Jamaica.

Leonard Benton, also known as Leonard Capoziello

DEA has documented Leonard Benton, also known as Leonard Capoziello, as a close associate of DEA fugitive and convicted marihuana smuggler Daniel C. McGuinness. The pen register disclosed a telephone call to Benton’s residence from Sayball’s residence on October 1, 1983. Surveillance disclosed that Sayball frequently drove vehicles registered to Benton’s car rental agency, and vehicles registered to Benton’s agency were observed at the Monroe Fish Market and at Sayball’s residence.

II

We first address the proper scope of review of the wiretap order of the panel, because in this case that scope of review is determinative of the principal issue, namely, whether Solomon’s affidavit established the requisite probable cause. The applicable scope of review of a wiretap order has been clearly stated by our Supreme Court: “[A] reviewing court should examine the information that was before the issuing panel and determine whether there was a substantial basis for the wiretap panel’s finding of probable cause in accordance with our statutes. The deference to be accorded to the wiretap panel cannot be interpreted to mean that an order of that panel is insulated from meaningful review. The principle of great deference is properly applied to uphold the granting of an order by the wiretap panel where the reviewing court concludes, based upon its analysis of the record before the panel, that it is faced with a situation which it finds doubtful or marginal. Just as the wiretap panel ‘must not merely serve as a rubber stamp for the police’; see State v. DeChamplain, [179 Conn. 522, 528, 427 A.2d 1338 (1980)]; State v. Rose, 168 Conn. 623, 627, 362 A.2d 813 (1975); a reviewing court must itself be satisfied that the facts set forth in the affidavit relied upon establish probable cause.” State v. Ross, 194 Conn. 447, 459-60, 481 A.2d 730 (1984). The principle of great deference in a marginal case, which applies to warrants generally, is particularly appropriate under our statutory wiretap scheme, because we review the decision to issue the wiretap order, not of one judge, but of a panel of three judges.

Although the trial court determined that the applications and affidavits did not establish probable cause, or at least that they were not sufficiently close to the mark to invoke the “great deference” normally accorded to warrants; State v. Jackson, 162 Conn. 440, 445, 294 A.2d 517, cert. denied, 409 U.S. 870, 93 S. Ct. 198, 34 L. Ed. 2d 121 (1972); our independent review of them leads us to a different conclusion. Our “analysis of the record before the panel” convinces us that we are “faced with a situation which [we find] doubtful or marginal.” State v. Ross, supra, 460. In such a situation, “[t]he principle of great deference is properly applied to uphold the granting of [the] order by the wiretap panel. . . . ” Id., 459-60.

Ill

State v. Ross, supra, 463, also made clear that the proper test for evaluating whether an affidavit establishes probable cause for the issuance of a wiretap order is “the so-called Aguilar-Spinelli test; Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelliv. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).” That test requires that the affidavit disclose “ ‘(1) some of the underlying circumstances relied on by the person providing the information to the affiant; and (2) some of the underlying circumstances from which the affiant concluded (a) that the informant, whose identity need not even be disclosed, was credible, or (b) that his information was reliable.’ ” State v. Ross, supra, 463 n.14.

When an affidavit contains hearsay, or, as in the case of some of the informants here, hearsay upon hearsay, the magistrate issuing the wiretap order must “ ‘determine whether it can be reasonably inferred “that the informant had gained his information in a reliable way.” The magistrate must canvass the affidavit and the informer’s tip as a whole and measure it against Aguilar standards in order to assess its probative value.’ ” Id., 464-65. Lack of circumstances indicating an informant’s basis of knowledge “may be overcome by the presence of other factors such as corroboration of the information by the police, the existence of a declaration against penal interest, or reputation and past criminal behavior which could form a substantial basis for crediting hearsay. . . . ” Id., 465-66. Dovetailing of information from different sources also supplies corroboration. State v. Kimbro, 197 Conn. 219, 232, 496 A.2d 498 (1985). Additionally, an informant’s “track record” of having supplied information in the past which led to an arrest or conviction is an indication of his reliability. Id.

Finally, the affidavit must be read “in a common sense manner” to determine whether it establishes probable cause. State v. Ross, supra, 468. “Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed.” State v. Middleton, 170 Conn. 601, 604, 368 A.2d 66 (1976). This “well-established definition” specifically applies to wiretap cases. State v. Ross, supra, 459. The ultimate question for the issuing magistrate is: “ ‘Was this suspect probably involved in criminal activity?’ ” State v. Jackson, supra. The issuing magistrates, moreover, are not confined to the literal terms of the affidavit, but, in exercising their independent judgment, may draw reasonable inferences from those terms. Id., 444.

IV

With these principles in mind, we turn to the primary issue in this case, namely, whether Solomon’s affidavit established “probable cause to believe that: (1) An individual has committed or is committing” the offense of illegal sale of narcotics or controlled substances; General Statutes § 54-41d (1); as a basis for the issuance of the wiretap order. The application and affidavit posit a continuing scheme of illegal sale of drugs by Sayball involving his place of business, the Monroe Fish Market, his residence on Old Newtown Road in Monroe, and the telephones at those locations. This information came from two sources, neither of which, standing alone, met the Aguilar-Spinelli test. The first source was the purported upstanding citizen who had passed on to Mercier information, which was given to him by someone with personal knowledge, that Sayball was transporting cocaine from outside Connecticut to his fish market, where he would supply others. The second came from a purported confidential and reliable source who, not speaking from personal knowledge, told Hughes that Sayball was distributing cocaine of high quality.

We, therefore, examine Solomon’s affidavit to determine whether probable cause as to Sayball’s involvement in such a scheme was established by information disclosing (1) some of the underlying circumstances relied on by the persons supplying the information to Solomon, and (2) either (a) that the informants were credible, or (b) that the informants’ information was reliable. We note in this connection that it is not necessary that all the information listed in the affidavit meet this test. As long as one or more of the informants, taken singly or together, establish probable cause as gauged by Aguilar-Spinelli, the affidavit is sufficient to justify issuance of the wiretap order.

A

The first prong of the test is met by the marginal but sufficient information pertaining to Ricca, the unusual traffic at Sayball’s house, and the involvement of the defendant. The informant, who tied Sayball and Ricca together in a drug-selling scheme in 1980 and 1981, disclosed to Solomon that he was speaking from personal observation. See State v. Telesca, 199 Conn. 591, 602-603, 508 A.2d 1367 (1986). This informant was present on several occasions when Ricca obtained cocaine from Sayball at the market and at Sayball’s home which he claimed was then in Huntington, Connecticut. He was also speaking from personal observation when he disclosed that Ricca arranged these illicit transactions by telephone calls to the market and to Sayball’s then residence. Furthermore, this informant’s information was corroborated, in part at least, by reference to the public land and motor vehicle records which indicated that Sayball lived in Huntington during that time period.

Another confidential source was interviewed by Solomon and Mercier in January, 1983. This source was speaking from personal observation when he reported excessive amounts of motor vehicle traffic entering Sayball’s driveway during the early morning hours of various days of the week, including Saturdays and Sundays. Furthermore, the credibility of this informant was sufficiently established by his track record of having previously given information which led to an arrest and conviction.

A third confidential informant gave information to Solomon through Norwalk narcotics officer Adams which linked Sayball to the defendant in a drug selling scheme. This informant related that in August, 1983, he bought cocaine from the defendant at his Norwalk place of business. This information disclosed the underlying circumstances relied on by Adams and Solomon, namely, the informant’s first-hand participation in the transaction. Adams overheard the defendant confirm that he had sold drugs to the informant. The informant’s reliability was further corroborated by his declaration against penal interest to Adams that he had bought cocaine from the defendant at the defendant’s place of business. The informant also told Adams that the defendant claimed to have a limitless source of drugs. The defendant was linked to Sayball by surveillance for the period of January, 1983, through August, 1983, indicating that Sayball or his wife operated an automobile registered to the defendant’s business, and by the numerous telephone calls between Sayball’s business and residence and the defendant’s telephone facilities, including twelve such calls in the period of September 29, 1983, through October 4, 1983.

B

The second prong of the Aguilar-Spinelli test is established, again marginally but sufficiently, principally through the information disclosed by the toll call records and pen register tapes, and by the permissible inferences arising therefrom. This information supplied a sufficient corroborating basis for the critical inference drawn by the wiretap panel, namely, that the various informants’ statements indicating that Sayball was involved in a continuing drug selling scheme at his home and business, were reliable. This information is as follows.

From January 17, 1983, through August 19, 1983, there were a total of 112 telephone calls between Sayball and Lipnickas. Lipnickas had been convicted of possessing cocaine and marihuana. There was also first-hand, albeit uncorroborated, information from an informant that Lipnickas was actively selling cocaine. From January 17,1983, through October 4,1983, there were thirty-seven calls from Sayball to the defendant. The defendant had been convicted of possession of cocaine. Furthermore, there was reliable information, described above, that the defendant was selling cocaine, and that he claimed to have a limitless source of drugs. From January 17,1983, through October 4,1983, there were ninety-six calls from Sayball to Uberti, who had been arrested for possession of narcotics with intent to sell and convicted of possession of a controlled substance. From January 17,1983, through July 15,1983, there were eighteen calls from Sayball to Willsey, who had been convicted of selling narcotics and aiding the sale of narcotics. From September 29, 1983, through October 4,1983, there were twenty-nine calls from Say-ball to Cavuoto. Cavuoto had been convicted of conspiracy to smuggle marihuana and was, at the time of the wiretap application, under arrest for possession of cocaine and conspiracy to sell cocaine. Thus, there were, from January 17,1983, through October, 1983, a total of 292 telephone calls between Sayball, either at his business or home, and persons with serious drug convictions.

The relevance of telephone calls between a wiretap target and persons with drug convictions, as corroboration of an otherwise uncorroborated informant’s information, has not been addressed either by this court or by our Supreme Court. It has been recognized, however, in some federal cases as a legitimate basis for such corroboration. See, e.g., United States v. Tehfe, 722 F.2d 1114, 1116 (3d Cir. 1983); United States v. Webster, 639 F.2d 174 (4th Cir. 1981). In United States v. Tehfe, supra, the court relied for corroboration on the fact that “[p]en register records also revealed that calls, including one on January 10, 1983, were made from a telephone at [the defendant’s] home to other drug dealers in the months before the request for a wiretap was granted.” In United States v. Webster, supra, the court relied on toll call records disclosing that calls from the target telephone, when matched with DEA records of known and suspected drug traffickers, resulted in three such calls. See also United States v. Lanza, 341 F. Sup. 405 (M.D. Fla. 1972) (use of temporal pattern of telephone calls, derived from pen register, to persons whom probable cause established as engaging in illegal gambling enterprise). Legitimate reliance for corroboration on the prior convictions of the other parties to the telephone calls derives from the well established rule that one of the most common reliability factors is “the reputation and past criminal behavior of the suspect.” State v. Ferguson, 185 Conn. 104, 113, 440 A.2d 841 (1981). Although all of these federal cases also had other corroborating circumstances stronger than in this case, it is also true that in none of these cases was there the extraordinarily high number of telephone calls to convicted drug offenders that is present in this case.

There was some further corroboration through the matching of the information supplied by the Massachusetts informant, whose reliability was not established, with that supplied by the reliable informant who described the excessive early morning traffic at Sayball’s residence. The Massachusetts informant’s information was that a load of smuggled marihuana was to be brought to a barn behind the house, north of Bridgeport, of a person in the fish business who was involved in the smuggling. The reliable informant’s information described excessive early morning traffic backing up to Sayball’s barn located behind his home in Monroe, which is north of Bridgeport. Corroboration results where information from different sources dovetails. State v. Kimbro, supra, 232, citing State v. Jackson, supra, 448.

Reading the entire affidavit in a common sense manner, applying the Aguilar-Spinelli test to its contents, and giving the decision of the issuing panel the great deference which, because this is a marginal case, it is due, we believe that it was a permissible inference that Sayball’s nearly 300 calls, in a period of less than ten months, with convicted drug offenders were part of his role in the continuing drug selling enterprise which had been described in the affidavit. We conclude, therefore, that probable cause existed for the issuance of the wiretap order.

V

We next consider whether it was necessary that the affidavit establish probable cause as to this defendant. The defendant argues that the affidavit did not establish probable cause as to him and that, therefore, the wiretap evidence was properly suppressible as to him. We agree with the state, however, that there is no requirement that the affidavit establish probable cause as to all persons named in the application as probable conversers. Because probable cause was established as to Sayball, the interception of his conversations with the defendant, who was also named in the application as a person whose communications were to be intercepted, was permissible.

First, there is nothing in the statutory scheme or language to suggest that probable cause must be established as to all potential interceptees in order for a wiretap order to be valid. General Statutes § 54-41c (5) (D) requires that the application include “the identity of the person, if known, who has committed or who is committing the offense and whose communications are to be intercepted . . . . ” General Statutes § 54-41d, which spells out the nine probable cause determinations which must be made by the wiretap panel, requires in subsection (1) only that there be probable cause that “[a]n individual has committed or is committing an offense enumerated in section 54-41b,” which includes sale of cocaine. (Emphasis added.) Thus, this statutory distinction between the language of General Statutes §§ 54-41c (5) (D) and 54-41d (1) belies the defendant’s argument. The defendant’s interests are adequately protected in the statute by permitting him to challenge the validity of the wiretap order upon a showing that he is an “aggrieved person.” General Statutes § 54-41m.

Second, our wiretap statute has been interpreted, consistently with the federal wiretap act, to permit the overhearing of unnamed individuals who are parties to the conversation of named persons as long as the panel’s order includes appropriate permissible language, such as “ ‘in conversations of others unknown,’ or some clear equivalent thereto . . . . ” State v. Thompson, 191 Conn. 360, 375, 464 A.2d 799 (1983), cert. denied, 465 U.S. 1006, 104 S. Ct. 999, 79 L. Ed. 2d 231 (1984). It would be a bizarre construction, indeed, to permit the interception of conversations of unnamed individuals, as to whom it may be unlikely if not impossible to establish probable cause, but to bar the interception of conversations of named probable conversers as to whom there is a quantum of information.

Third, this construction of our wiretap statute is consistent with federal cases construing essentially the same language in the federal wiretap statute. Neither the fourth amendment nor the federal statute require a showing of probable cause as to all persons named in the application as probable conversers, as long as probable cause is established as to one of them. United States v. Martin, 599 F.2d 880, 884 (9th Cir. 1979); United States v. Kirk, 534 F.2d 1262 (8th Cir. 1976); United States v. Tortorello, 480 F.2d 764 (2d Cir. 1973), cert. denied, 414 U.S. 866, 94 S. Ct. 63, 38 L. Ed. 2d 86 (1973); see Fishman, Wiretapping and Eavesdropping (1985 Sup.) § 50. We recognize that in some respects our statute is more stringent than the federal act; see, e.g., State v. Formica, 3 Conn. App. 477, 483-84, 489 A.2d 1060, cert. denied, 196 Conn. 806, 494 A.2d 903 (1985); but we see nothing in our legislative scheme or its history, which we have examined, to suggest that this is one of those situations. Indeed, the pertinent judicial gloss on our statute suggests that, in this respect, our statute should be read consistently with the federal act. State v. Thompson, supra.

The defendant’s reliance on United States v. Donovan, 429 U.S. 413, 97 S. Ct. 658 , 50 L. Ed. 2d 652 (1977), is misplaced. In that case, the Supreme Court held that, pursuant to the federal wiretap statute, the government must name in its application any individual it has probable cause to believe is engaged in the investigated criminal activity and whose conversations it expects to overhear. It did not decide, nor has any other case brought to our attention, that the government must establish probable cause as to any individual so named in order for the wiretap order to be valid against that individual.

VI

The final question involves the meaning of General Statutes § 54-41c (7), which provides in pertinent part: “No order authorizing or approving the interception of a wire communication shall be issued if the facts and circumstances relied upon by the applicant were discovered more than twenty days next preceding the date of the application.” Admittedly, much of the information in the affidavit was known to the the law enforcement agencies long beyond the twenty day period. It is also true, however, that it was within the twenty day period preceding the date of the application that further information was discovered which, taken together with the earlier information, permitted a finding of probable cause and thus permitted a wiretap order to issue. It is not necessary in this case to define the precise contours of the meaning of the statutory provision at issue here. We conclude that, at least where the application and affidavit indicate a continuing course of criminal activity, as they do here, the twenty day statutory rule is not violated if the finding of probable cause rests on facts and circumstances discovered within the period in addition to facts and circumstances discovered beyond the period.

A statute, even one which has been held to be subject to strict construction; State v. Formica, supra, 481; must be read with common sense, so as to accomplish a reasonable result and not to thwart its purpose. State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983). It cannot be denied that one of the principal purposes of our statutory scheme is to permit wiretaps where there is probable cause to believe that an individual is illegally selling a drug such as cocaine. See General Statutes §§ 54-41d (1), 54-41b and 21a-277.

Probable cause is not ordinarily produced as one piece of precast concrete. It is a “mosaic”; State v. Abbott, 5 Conn. App. 441, 445, 499 A.2d 437 (1985); which is established by fitting pieces of information together so that they can ultimately convince a magistrate that there is “ ‘a fair probability [of] proscribed activity’ . . . . ” Id., 446.

The illegal sale of drugs is a criminal activity which is not necessarily confined to a twenty day period, as if it were inherently akin to the traditional Thanksgiving-to-Christmas retail sales period. It often, as was shown in this case, involves a course of conduct which continues over a long period of time. State v. Burgos, 7 Conn. App. 265, 271, 508 A.2d 795 (1986). It would be an unreasonable construction of General Statutes § 54-41c (7), would thwart its purpose, and would be inconsistent with the nature of the process of establishing probable cause, to hold that none of the information discovered beyond the twenty day period could be used to establish probable cause for a wiretap aimed at ferreting out evidence of a continuing course of illegal drug selling.

Although the legislative history of our twenty day rule is scant and offers little illumination on the precise issue here, that history does indicate a legislative concern that wiretap orders not issue based on stale information. See 14 S. Proc., Pt. 2,1971 Sess., p. 834. Thus, we can reasonably read General Statutes § 54-41c (7) as an additional attempt to implement the constitutional staleness principle. We have recognized, under that principle, that “[ojther material in the affidavit may supplement and bring down to date the earlier materials . . . . ” State v. Abbott, supra, 445.

The federal wiretap statute has no analog to our twenty day rule. Under that scheme, the only pertinent inquiry is whether the information in the affidavit is sufficiently fresh to meet federal constitutional limitations on staleness. United States v. Martino, 664 F.2d 860, 867 (2d Cir. 1981). “Where the supporting affidavits present a picture of continuing conduct or an ongoing activity, as contrasted with isolated instances of illegal acts, the passage of time between the last described act and the presentation of the application becomes less significant.” Id., 867. Thus, our reading of the twenty day rule, which does not preclude resort to older information in a case involving ongoing criminal activity, is consistent with the federal constitutional staleness principle.

There is error, the judgment granting the motion to suppress and dismissing the information is set aside, and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       A pen register is a mechanical device, usually installed at a central telephone facility, which records on a paper tape all the telephone numbers dialed from the telephone line to which it is attached. It does not record the contents of the actual conversations involved in the calls. The fourth amendment does not apply to a pen register because a telephone user has no legitimate expectation of privacy in the information which it gathers and supplies. Smith v. Maryland, 442 U.S. 735, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979).

       In addition, in the same general time period, there were a total of 222 telephone calls between Sayball and Scarano, Desmond and Benton, all of whom were suspected by DEA of being involved in drug smuggling. These suspicions were, however, essentially uncorroborated. We do not rule out the use in an appropriate case of such suspicions by federal drug officials, if sufficiently documented or at least partially corroborated, as additional material forming the basis of a probable cause determination. We do not, however, believe them to be necessary in this case. Therefore, we do not rule on the effect of such assertions in the affidavit in this case.