author: Lavery, J.

text:
    Albert Pagliarulo v. Bridgeport Machines, Inc., et al.
    (7643)
    Borden, Norcott and La very, Js.
    Argued September 14
    decision released October 24, 1989

      Lucas D. Strunk, for the appellants (defendants).

      Vincent M. Zanella, Jr., with whom, on the brief, was George W. Booth, Jr., for the appellee (plaintiff).
   Lavery, J.

The defendants appeal from the decision of the compensation review division of the workers’ compensation commission upholding the hearing commissioner’s decision in favor of the plaintiff. On appeal, the sole dispositive issue is whether the hearing commissioner and the review commission applied the correct standard in reviewing the suspension of workers’ compensation benefits under General Statutes § 31-294 by considering the reasonableness of the plaintiff’s refusal of medical treatment rather than the reasonableness of the treatment itself. We find error.

The following facts are not in dispute. On May 16, 1980, the plaintiff, a fifty-three year old laborer, injured his back during the course of his employment with the named defendant. The parties filed a voluntary agreement on January 19,1983, accepting the plaintiffs back injury as compensable. Under the voluntary agreement, the plaintiff’s base compensation rate was set at $260.18.

In July, 1980, Irving Sherman, a neurosurgeon, performed a myelogram and laminectomy on the plaintiff’s back. The plaintiff continued to have back problems and, in November, 1981, Stanley Fromm, another neurosurgeon, performed a second myelogram and laminectomy. The plaintiff has not worked since the November, 1981 surgery. The plaintiff continued to complain of back pain and returned to see Fromm, who ordered a CAT scan performed on him. In the opinion of the radiologist who performed the CAT scan, the only abnormalities in the plaintiffs CAT scan were attributable to the two prior operations. The plaintiffs back pain continued, causing Fromm to believe that the plaintiff was probably suffering from a recurrent herniated disc, even though the CAT scan had failed to disclose that condition. Since May 3,1983, the plaintiff’s total disability has prevented him from pursuing any gainful employment.

In early 1983, Fromm recommended that the plaintiff undergo another myelogram. Fromm was of the opinion that the myelogram was a reasonable medical procedure to determine whether the plaintiff had a herniated disc. In June, 1983, the plaintiff consented to undergo the third myelogram. The myelogram revealed a large defect at the level of the fourth lumbar disc. Fromm recommended that a third laminectomy be done bilaterally, and that a fusion be performed by an orthopedic surgeon.

The plaintiff refused to undergo the additional surgery because he had already submitted to two unsuccessful operations. According to Fromm’s testimony before the hearing commissioner, the plaintiff was afraid to subject himself to the third operation in light of the very poor results obtained from the prior surgeries. The defendant insurance carrier terminated its payment of certain of the plaintiffs benefits, and the plaintiff applied to the workers’ compensation commissioner for reinstatement of benefits.

At the hearing, Fromm testified that he believed that the proposed procedure was the medically reasonable course of treatment for the plaintiffs condition, and that the operation was the only medical treatment that could return the plaintiff to some form of gainful employment. He further testified that the risks involved in the surgery were minimal, and that, if successful, the operation would significantly improve the plaintiffs condition. Fromm also testified, however, that the surgery would give the plaintiff no better than a fifty-fifty chance of significantly improving his back, and that under no circumstances could the surgery reduce the 30 percent permanent partial disability of the plaintiffs lower back.

In his finding and award, the hearing commissioner based his decision to reinstate the plaintiffs benefits on the finding that the plaintiffs “refusal to undergo the recommended surgical procedure [was] not unreasonable.” The review division upheld the commissioner’s conclusion on appeal.

The defendants claim that, in determining whether to terminate workers’ compensation benefits, the commissioner and the review commission erred in considering the reasonableness of the plaintiff’s refusal to undergo surgery, rather than considering the reasonableness of the surgical treatment itself. We agree.

In hearings before the workers’ compensation commissioner, “the power and duty of determining the facts rests on the commissioner, the trier of the facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 [1951].” Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 687, 96 A.2d 752 (1953). The conclusions drawn by the commissioner “from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 [1950].” Acquarulo v. Botwinik Bros., Inc., supra, 687-88; Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

General Statutes § 31-294 provides in pertinent part: “If it appears to the commissioner that an injured employee has refused to accept . . . such reasonable medical, surgical or hospital or nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.” (Emphasis added.) The statute is concerned not with the reasonableness of the plaintiffs refusal to accept treatment, but with the reasonableness of the “medical, surgical or hospital or nursing service” available to the plaintiff. Acquarulo v. Botwinik Bros., Inc., supra, 688. Whether a proposed surgical procedure is reasonable under the terms of the statute is a question of fact for the commissioner to resolve.

Thus, the decision of the review division is an erroneous application of law to the facts of the case, in that it was based upon a finding that the plaintiffs refusal to accept further treatment was reasonable, with no reference to the reasonableness of the treatment, itself. It does not automatically follow, however, that on remand the commissioner must find that the treatment is reasonable and compel the plaintiff to undergo the surgery in question.

We recognize that certain aspects of the question of whether a surgical procedure is reasonable under the circumstances go beyond “ ‘the ordinary knowledge and experience’ of the trier of fact.” Feinson v. Conservation Commission, 180 Conn. 421, 428, 429 A.2d 910 (1980); Jaffe v. State Department of Health, 135 Conn. 339, 350, 64 A.2d 330 (1949). Expert testimony may be required to assist the trier in resolving those aspects of the issue. The acceptance or rejection of the opinions of expert witnesses, however, “ ‘ “is a matter peculiarly within the province of the trier of fact and its determinations will be accorded great deference by this court.” ’ Johnson v. Healy, 183 Conn. 514, 515-16, 440 A.2d 765 (1981).” Carter v. Carter, 8 Conn. App. 356, 358, 512 A.2d 979 (1986); see also Franklin v. Dunham, 8 Conn. App. 30, 33, 510 A.2d 1007 (1986).

On remand, the hearing commissioner will be required to consider whether the proposed medical treatment is reasonable. This question is not necessarily a medical matter only, on which expert testimony would be necessary, but may also be affected by a consideration of the surrounding circumstances as the trier of fact finds them. See Lamont v. New Hartford, 4 Conn. App. 303, 305-306, 493 A.2d 298 (1985). Such circumstances may include the plaintiffs age, medical history, previous course of treatment and its success or failure, and whether the proposed.medical procedure “involves real danger and suffering without fair assurance of effecting an improvement or restoration of health.” Acquarulo v. Botwinik Bros., Inc., supra, 690 (Baldwin, J., concurring).

There is error, the decision of the compensation review division is set aside and the case is remanded to the review division with direction to remand the matter to the hearing commissioner for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       General Statutes § 31-294 provides in pertinent part: “If it appears to the commissioner that an injured employee has refused to accept . . . such reasonable medical, surgical or hospital or nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.”


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Myron Chomko v. Ira Patmon et al.
    (7581)
    Dupont, C. J., Borden and Spallone, Js.
    decision released October 24, 1989

      Laurence V. Parnoff, with whom, on the brief, was Mary Ann Barile, for the appellant (plaintiff).

      Heidi G. Winslow, for the appellees (defendants).
   Borden, J.

This appeal is a sequel to our recent decision in Chomko v. Patmon, 19 Conn. App. 483, 563 A.2d 311 (1989) (Chomko I). In Chomko I, which was a summary process action based on nonpayment of rent, we found no error in the trial court’s determination that the plaintiff had failed to establish a landlord-tenant relationship between him and the defendants regarding the condominium in question, and that, therefore, the plaintiff was not entitled to a judgment of possession by way of a summary process action. The basis of our decision was the abundant evidence, on which the trial court was entitled to rely, indicating that the relationship between the plaintiff and the defendants was one of seller-mortgagee and buyer-mortgagor, rather than one of landlord and tenant. Id., 484-86.

This appeal arises from a second judgment dismissing the plaintiff’s second summary process action against the defendants that was brought while Chomko I was pending on appeal in this court. In' this case, the plaintiff again sought possession of the premises by way of a summary process action, alleging that the defendants have made no payment of taxes, utilities or common charges regarding the property, and that they have no right to the continued possession of the premises. The defendants moved to dismiss the action on the ground that pendency of the Chomko I appeal rendered this case subject to dismissal under the prior pending action doctrine. See, e.g., Halpern v. Board of Education, 196 Conn. 647, 495 A.2d 264 (1985). The trial court granted the motion to dismiss and the plaintiff appealed.

The plaintiff claims that the court erred by dismissing his summary process action (1) because the appeal to this court in Chomko I was not “pending” within the meaning of the prior pending action doctrine, and (2) because, even if it were pending, the two actions are sufficiently different so as to preclude the application of that doctrine. Although, as the defendants concede, the plaintiff is correct in his assertion that a pending appeal is not a prior pending action within the meaning of the prior pending action doctrine; see Salem Park, Inc. v. Salem, 149 Conn. 141, 176 A.2d 571 (1961); we conclude that our decision in Chomko I, subsequent to the trial court’s judgment in this case, has rendered this appeal moot because there is now no practical relief that can legally be afforded to the plaintiff in this case.

In this case, the same plaintiff, as he did in Chomko I, again seeks to use summary process to oust the same defendants from the same premises, albeit on a different statutory ground, namely, that the defendants “have no right to the continued possession and occupancy of the . . . premises.” See General Statutes § 47a-23 (a). The insurmountable hurdle for the plaintiff, however, is that the defendants’ continued possession stems from the same facts underlying the Chomko I decision, and that those facts have already been fully litigated and were the basis for the trial court’s determination, upheld on appeal, that a landlord-tenant relationship did not exist between the parties. All considerations of finality of judgments and judicial economy, particularly as expressed through the doctrine of collateral estoppel, lead to the inescapable conclusion that the plaintiff must be barred from relitigating that same issue. Once we held in Chomko I that the trial court did not err when it determined that the plaintiff had failed to establish a landlord-tenant relationship, any future attempt by the plaintiff to use summary process against the defendants, based on the same factual matrix undergirding their relationship, would be doomed to fail. This is so because, unless the plaintiff can establish that he is the defendants’ landlord and that they are his tenants, he cannot employ summary process to evict them. Chomko I, supra, 486. Having failed to establish those facts once, he is not entitled to relitigate them, absent any indication, which is lacking here, that the nature of their relationship has changed.

Thus, even if the plaintiff were to prevail in this appeal, on the remand the trial court would be confronted with the conclusive determinations of the trial court and this court’s decision in Chomko I that no landlord-tenant relationship existed between the plaintiff and the defendants. This combination would require the trial court to render judgment once again for the defendants in this summary process action. We therefore conclude that no practical relief can ultimately flow from our determination of this appeal, and that it must be dismissed as moot.

It is true that under ordinary circumstances collateral estoppel is an affirmative defense that is appropriately raised in á defendant’s answer to a plaintiff’s complaint. See Salem Park, Inc. v. Salem, supra, 144. It is for this reason that the plaintiff urges us to sustain his appeal, and thus, on the remand, to permit the defense of collateral estoppel regarding the absence of a landlord-tenant relationship to be litigated in the trial court using the appropriate procedures. We decline to do so, however, because under that suggested scenario the outcome of such a defense would be predetermined. Indeed, only if the trial court on such a remand were erroneously to blind itself to the prior course of the trial and appeal in Chomko I could it decide otherwise. Thus, the plaintiffs argument would simply set judicial wheels unnecessarily spinning, only to remain at the same end of the road. This appeal must therefore be regarded as moot.

The appeal is dismissed.

In this opinion the other judges concurred.

Argued September 13

       This conclusion renders it unnecessary to consider the defendants’ alternate ground for affirming the trial court’s judgment, namely, that another, different action pending in the trial court formed a proper basis of a dismissal of this action under the prior pending action doctrine.

      Argued September 13


text:
    Barclays Bank of New York v. William M. Ivler et al.
    (7417)
    Borden, Spallone and La very, Js.
    Argued September 14
    decision released October 24, 1989

      William, M. Ivler, pro se, the appellant (named defendant).

      Richard E. Castiglioni, with whom, on the brief, was Kent M. Krudys, for the appellee (plaintiff).
   Lavery, J.

This is an appeal from the trial court’s denial of the named defendant’s motion to open a stipulated judgment of strict foreclosure. The defendant’s law day has passed and his equity of redemption has been extinguished. We conclude, sua sponte, that this case is moot and therefore must be dismissed.

For the purposes of this appeal, the following facts are relevant. On December 31,1985, the defendant executed and delivered to the plaintiff two promissory notes in the principal sums of $6,150,000 and $650,000. To secure these notes, the defendant simultaneously executed a first mortgage on property located at 720 Bedford Street, Stamford. Except for an advance payment of interest at the mortgage closing on December 31, 1985, the defendant has made no payments of principal or interest, nor has he paid any real property taxes, which have fallen into arrears.

In March, 1987, the plaintiff initiated foreclosure proceedings. On April 18, 1988, the parties entered into a stipulated judgment of strict foreclosure. The stipulated judgment set law days, beginning September 30, 1988, for the defendant, allowing him to redeem on or before his law day for the sum of $6,250,000. The plaintiff agreed not to seek a deficiency judgment and the defendant agreed not to take an appeal from the stipulated judgment.

On August 25, 1988, the defendant moved to open the stipulated judgment. The court denied the motion on September 7, after extensive testimony and argument. On September 20,1988, the defendant appealed from the court’s denial of his motion to open. Thereafter, the parties exchanged numerous salvos of motions, the principal and highly unfortunate result of which was to delay the argument and disposition of this appeal for an entire year.

Our examination of the procedural record of this case requires us first to determine whether the court has jurisdiction to entertain the appeal, or whether it is moot. To do this, consideration of the following legal principles is in order.

In Connecticut, a mortgagee has legal title to the mortgaged property and the mortgagor has equitable title, also called the equity of redemption. Conference Center Ltd. v. TRC, 189 Conn. 212, 218, 455 A.2d 857 (1983). The equity of redemption gives the mortgagor the right to redeem the legal title previously conveyed by performing whatever conditions are specified in the mortgage, the most important of which is usually the payment of money. General Statutes § 47-36h; State v. Stoneybrook, Inc., 149 Conn. 492, 495-96, 181 A.2d 601, appeal dismissed and cert, denied, 371 U.S. 185, 83 S. Ct. 265, 9 L. Ed. 2d 227 (1962); Brand v. Woolson, 120 Conn. 211, 180 A. 293 (1935). Under our law, an action for strict foreclosure is brought by a mortgagee who, holding legal title, seeks not to enforce a forfeiture but rather to foreclose an equity of redemption unless the mortgagor satisfies the debt on or before his law day. Cook v. Bartholomew, 60 Conn. 24, 27, 22 A. 444 (1891).

“Where a foreclosure decree has become absolute by the passing of the law days, the outstanding rights of redemption have been cut off and the title has become unconditional in the [redeeming encumbrancer] .... The mortgagor has no remaining title or interest which he may convey.” City Lumber Co. of Bridgeport, Inc. v. Murphy, 120 Conn. 16, 25, 179 A. 339 (1935); see also General Statutes § 49-19; Small Business Investment Co. v. Cavallo, 188 Conn. 286, 288, 449 A.2d 988 (1982). Provided that this vesting has occurred pursuant to an authorized exercise of jurisdiction by the trial court; see Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 298-99, 435 A.2d 350 (1980) (court ordered sale of foreclosed property void where sale took place despite existence of automatic stay of execution under Practice Book § 3065 [now § 4046]); it is not within the power of appellate courts to resuscitate the mortgagor’s right of redemption or otherwise to disturb the absolute title of the redeeming encumbrancer. Connecticut Savings Bank v. Howes, 9 Conn. App. 446, 447-48, 519 A.2d 1216 (1987); cf. General Statutes § 49-15.

The question this court must address, therefore, is whether the law days have run so as to extinguish the defendant’s equity of redemption and vest title absolutely in the plaintiff. If this has occurred, “no practical relief [could] follow” from a determination of the merits of this case; State v. Johnson, 11 Conn. App. 251, 256, 527 A.2d 250 (1987); and we must dismiss the case as moot. Id.

On May 1, 1989, the trial court set law days beginning May 22, 1989, for the defendant. The defendant timely filed a motion for review, which was denied on May 17. No stay was in effect; see footnote 2, supra; and the defendant did not redeem on May 22, nor did the subsequent lienholders on their law days. Therefore, the defendant’s equity of redemption was extinguished, and title to the property vested absolutely in the plaintiff once the law days passed.

Because absolute title has passed to the plaintiff, the remedy the defendant seeks by appeal is no longer available. Merry-Go-Round Enterprises, Inc. v. Molnar, 10 Conn. App. 160, 162, 521 A.2d 1065 (1987); see also Connecticut Savings Bank v. Howes, supra, 447-48.

The appeal is dismissed. The plaintiff has one month from the release date of this decision to file a foreclosure certificate without penalty, in accordance with General Statutes § 49-16.

In this opinion the other judges concurred.

       The named defendant mortgagor is the only defendant taking this appeal. The other defendants were the city of Stamford, Paul J. Daria,, Temp Air Company, and the state of Connecticut. These parties each had a recorded lien interest in the property. Because Ivler was the only defendant to take this appeal, and the only defendant directly involved in the procedural steps leading to this appeal, the opinion will refer to Ivler as “the defendant.”

       After the defendant filed his September 20, 1988 appeal, the sorry procedural history of this case unfolded as follows: On September 23, 1988, the plaintiff filed a motion to terminate the automatic stay of execution. The court held a hearing on September 30, 1988, and granted the plaintiffs motion to terminate the stay. The defendant immediately moved for this court to review the termination of the stay. On November 8,1988, we denied the defendant’s request for relief from the termination of the stay.
      Thereafter, on November 17, 1988, the plaintiff filed a motion seeking advice from the trial court as to whether title had passed to it, and if not, whether new law days should be set. On November 28,1988, the court heard the motion and set new law days beginning December 5, 1988, for the defendant. The court, at the same time, terminated any stay of the law days pending appeal. On November 30,1988, the defendant appealed from the trial court’s setting of the new law days. On December 2, 1988, the defendant filed a motion for review of the trial court’s termination of stay of the December 5 law day. On January 27,1989, this court denied any relief to the defendant on the review of the stay, dismissed the second appeal, and gave the defendant the right to amend his first appeal to include the trial court’s setting of new law days on November 28, 1988.
      On February 2, 1989, the plaintiff filed a motion to set new law days. On May 1, the trial court set the law days beginning May 22,1989, for the defendant. In addition, the trial court terminated any stay of appeal that would be created by the defendant’s taking an appeal from the setting of the new law days. On May 5, the defendant filed a motion for review of the trial court’s order terminating the automatic stay of execution. On May 17, this court denied the relief requested. On May 22, the defendant filed a motion for reconsideration with this court that was denied on June 26, 1989.

       General Statutes § 49-15 provides: “opening of judgments of foreclosure. Any judgment foreclosing the title to real estate by strict foreclosure may, at the discretion of the court rendering the same, upon the written motion of any person having an interest therein, and for cause shown, be opened and modified, notwithstanding the limitation imposed by section 52-212a, upon such terms as to costs as the court deems reasonable; but no such judgment shall be opened after the title has become absolute in any encumbrancer.”


author: Norcott, J.

text:
    State of Connecticut v. George Velez
    (7224)
    Daly, Norcott and Foti, Js.
    Argued September 19
    decision released October 24, 1989

      Brian J. Kornbrath, with whom, on the brief, was Jon L. Schoenhorn, for the appellant (defendant).

      Timothy Sugrue, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Paul Murray, assistant state’s attorney, for the appellee (state).
   Norcott, J.

The defendant appeals from the judgment convicting him of possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b). After the trial court denied his motion to suppress all evidence seized during a search of his person incident to his arrest, the defendant entered a conditional plea of nolo contendere pursuant to General Statutes § 54-94a. On appeal, the defendant claims that the trial court erred in denying his motion to suppress because the arresting officers did not have probable cause to effect a warrantless arrest and subsequent search, and thereby violated his rights under both the United States and Connecticut constitutions.

At the suppression hearing, the trial court made the following findings of fact. On October 28, 1987, at approximately 8 p.m., the Tri-Town Task Force executed a search warrant at the condominium of Lydia Cameron and Brian Cowell in South Windsor. After the couple had received their Miranda warnings, and in the course of the search and interrogation, Cameron told the police that Cowell had been dealing drugs for about a year and that the defendant, George Velez, was his supplier. After being taken into custody and taken to the police station, Cowell gave information over the telephone or radio to the police still in his condominium as to where they could find his “stash” of two ounces of cocaine that he claimed to have purchased earlier that day from the defendant. The stash was located in a locked tool box hidden in a closet behind a wall. The entire wall was constructed to slide up and down. Cowell gave the police the combination to the box, and they opened it and found the cocaine.

The police then asked Cowell to call his supplier, who Cowell claimed was the defendant. At their request, Cowell made the phone call to the defendant’s home from a “clear line” at the police department. Cowell told the police that the person who answered the telephone said that the defendant was not at home. Cowell then called DePortivo’s, a social club in Hartford which the defendant was said to frequent. Cowell asked for the defendant and set up a meeting with the person with whom he spoke, claiming he was the defendant. The police heard only Cowell’s side of the telephone conversation; they neither recorded nor listened to the conversation from another extension. While Cowell was at the police department, the police at his condominium verified the phone numbers that Cowell had dialed as those of the defendant and DePortivo’s respectively, having found the same numbers in Cowell’s apartment.

Cowell finalized the meeting and told the police that the meeting with the defendant would take place at 11:30 p.m. at the 7-Eleven in South Windsor. Cowell said that the defendant was having mechanical problems with his car and that he might arrive in another person’s car. Cowell also gave a general description of the defendant to the police. The trial court found that probable cause to arrest attached at that point.

The police set up surveillance at the 7-Eleven store in unmarked police cars. Cowell remained in one of the unmarked cars. Around 11:30 p.m., a blue Camaro pulled into the 7-Eleven parking lot, and the passenger, a man whom Cowell tentatively identified as the defendant, exited the car and entered the store. One officer entered the store to determine whether that man fit the general description that Cowell had provided. Satisfied that the man in the store did fit that description, the officer returned to his surveillance point, called in a request for the registration of the car, and found that it was registered to one “Felix Velez.”

The defendant reentered the car after purchasing some food items and began to exit the parking lot. At that point, the unmarked police car blocked the defendant’s car, and the officers arrested the defendant and subsequently searched him. Their search yielded two packets of cocaine, one containing twenty-nine grams and the other containing two or three grams. The trial court found that the arrest had occurred at the point when the police blocked the car, and that probable cause to arrest was further substantiated by the defendant’s arrival.

The defendant argues that the information provided by the informant failed to meet the requisite two-pronged test first enunciated in Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), and adopted by this state in State v. Kimbro, 197 Conn. 219, 221, 496 A.2d 498 (1985), and that the police failed to corroborate the information sufficiently to raise their suspicions to the level of probable cause to arrest. He contends that both his state and federal constitutional rights were violated. Since a challenge to the sufficiency of probable cause under our state constitution is governed by this stricter Aguilar-Spinelli test as opposed to the federal constitutional test articulated in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), we consider the defendant’s claim only under our state’s more protective constitutional standard. State v. Banta, 15 Conn. App. 161, 175 n.5, 544 A.2d 1226, cert. denied, 209 Conn. 815, 550 A. 2d 1086 (1988).

Although the two-pronged Aguilar-S'pinelli test was first applied in a case involving a warrant, the same standards for probable cause apply to warrantless situations as well. State v. Martin, 2 Conn. App. 605, 612B, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). Under this test, the sufficiency of the information in an affidavit that relies on an informant depends upon the existence of (1) the informant’s basis of knowledge about the information provided, and (2) the underlying facts establishing his credibility or reliability. State v. Kimbro, supra, 224-25. This test focuses on three types of informant tips: (1) those from an informant known for the reliability of his predictions of certain types of criminal activities in a particular area; (2) those from an honest citizen who voluntarily reports criminal activity; and (3) “those from an informant who, although his motives may be open to question, supplies an explicit and detailed description of alleged wrongdoing, along with an indication that the event was observed firsthand, thus entitling the tip to greater weight than might otherwise be the case.” State v. Martin, supra, 615 (referring to situations where Gates, the federal standard parallel to Connecticut’s Kimbro test, applies). In our case, the type of information with which we are dealing most closely proximates the third type under Martin.

The defendant was subjected to a warrantless arrest and search incident thereto. “ 'There is no more basic constitutional rule in the Fourth Amendment area than that which makes a warrantless search unreasonable except in a few “jealously and carefully drawn” exceptional circumstances.’ United States v. Watson, [423 U.S. 411, 427, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976)] (Powell, J., concurring).” State v. Kimbro, supra, 238. It is axiomatic that the constitutional validity of the search is dependent upon the constitutional validity of the arrest, which can be valid only if the police possessed probable cause at the time of that arrest. Id., 223. An officer is authorized to arrest any person who he has “reasonable grounds to believe has committed or is committing a felony.” General Statutes § 54-If (b); State v. Penland, 174 Conn. 153, 155, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978). Reasonable grounds has been interpreted to mean probable cause. Id. “Although the precise determinations differ when probable cause to search and seize is at issue as opposed to probable cause to arrest, ‘ “it is generally assumed by the Supreme Court and the lower courts that the same quantum of evidence is required [for either].” ’ ” State v. DeChamplain, 179 Conn. 522, 529 n.7, 427 A.2d 1338 (1980). Probable cause for a warrantless arrest exists only when “[t]here must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information, sufficient to justify the belief of a reasonable person that an offense has been or is being committed”; State v. Penland, supra, 155; and that the person arrested committed the felony. State v. DeChamplain, supra, 529.

In a warrantless arrest or search, as well as one made pursuant to a warrant, the reviewing court must pay great deference to the magistrate’s determination of probable cause. State v. Kimbro, supra, 222. This court must not attempt a de novo review where there has already been a determination at a suppression hearing that probable cause exists. Id. When a trial court rules on a motion to suppress without making detailed findings of fact to support its ruling, “an appellate court may look to the evidence produced in support of the ruling.” State v. Martin, supra, 614. Where, as in this case, however, “the trial court performs its judicial function conscientiously by detailing the facts which the state has established, we are not free to add facts which are not found and which are not undisputed. See State v. Perez, 181 Conn. 299, 302-303, 435 A.2d 334 (1980).” Id.

In this case, the informant, Cowell, who was already in police custody and whose condominium was being searched, told the police where they could find his cocaine. He then claimed that his supplier was Velez and that he had purchased his cocaine from Velez. The state asserts that this statement satisfies both prongs of the Aguilar-Spinelli test, arguing that the informant’s basis of knowledge is his own participation in the crime with the defendant, and that the statement given was against the informant’s penal interests, hence rendering it reliable. The state argues further that this original statement was a valid basis upon which to credit the informant’s subsequent information that he made his phone call to DePortivo’s social club, spoke to the defendant, and set up a deal with him. We disagree.

While the previous reliability of an informant can be a basis for crediting his information; State v. Ferguson, 185 Conn. 104, 116, 440 A.2d 841 (1981); this informant had never provided information to the police before, and, hence, they did not know whether he was a reliable source of information. When presented with information provided by an untested informant, our Supreme Court has considered several factors to judge that informant’s credibility. “Three of the most common factors used to evaluate the reliability of an informant’s tip are (1) corroboration of the information by police, (2) declarations against penal interest by the informant-declarant, and (3) the reputation and past criminal behavior of the suspect.” Id., 113. These factors are relevant in determining whether the tip of an informant can serve as the basis for establishing probable cause. The mere existence of one or more of these factors, however, may still be insufficient to rise to the level of probable cause. Id., 115. “[Wjhere the tip involves a prediction of future activity, it is not necessary that the tipster himself indicate a basis of firsthand knowledge, as long as the detail of the tip indicates a fair probability’ that the information came from the target of the tip or from someone whom the target trusted, and as long as that probability was provided by corroboration of the ‘major portions’ of the tipster’s predictions. [Illinois v. Gates, supra, 246].” (Emphasis added.) State v. Martin, supra, 615.

After confirming the location of the cocaine, the police requested that the informant call the defendant to set up a cocaine sale. The informant first called the defendant’s home. The police confirmed only that he dialed the defendant’s phone number. They did nothing to attempt to hear any more than the informant’s side of the conversation. The informant next called DePortivo’s social club at about 10 p.m. and asked for the defendant; he then told the police that the defendant was supposed to return his call at 10:30 p.m. At about 11 p.m., since the defendant had failed to return the call, the police asked the informant to try again. The informant called DePortivo’s and spoke with someone who he claimed was the defendant and ultimately arranged a meeting to take place at 11:30 p.m. Once again, the police made no attempt to hear anything other than the informant’s side of the conversation, and could only assume that the informant was being truthful.

The informant told the police only that he was to meet the defendant at the 7-Eleven store at approximately 11:30 p.m., and that the defendant might arrive in someone else’s car. The informant neither described the car nor gave any details as to what the defendant would do upon arrival. When the defendant did arrive at the 7-Eleven at about 11:30 p.m., as a passenger in another vehicle, the informant could not make a positive identification. As he saw the defendant exit the car and enter the store, he was able to say only that this man might be the defendant. One police officer followed him into the store, verified only that he fit the general description given by the informant, called in the car registration, and discovered it was registered to one Felix Velez. The officers watched as the defendant bought some food items, got back in the car and began to exit the lot. At this point, the police blocked the defendant’s car with their own and arrested the defendant, removing him from the car.

The trial court held and the state concedes that the arrest occurred at the point at which the police surrounded the defendant’s car. Probable cause had to exist at that point in order for this arrest to be constitutionally valid. Although the court found that probable cause did exist at 11 p.m., probable cause did not exist before the defendant’s arrival at the 7-Eleven, and, therefore, the events that took place at the store must be considered.

In a litany of leading Connecticut cases our appellate courts have analyzed the question of probable cause to arrest when presented with information provided by an informant. After carefully reviewing the record, our analysis has led us to conclude that the police did not have sufficient information to constitute probable cause. The fact that the defendant actually arrived at the 7-Eleven at the time predicted was not enough to elevate the police officers’ information to the level of probable cause. See State v. Love, 169 Conn. 596, 601-602, 363 A.2d 1035 (1975); cf. United States v. Yanes, 671 F. Sup. 927 (D. Conn. 1987); State v. Rodriguez, 11 Conn. App. 140, 525 A.2d 1384 (1987); State v. Martin, supra.

In State v. Martin, supra, the court was presented with much more information than the officers had in this case. In Martin, the police not only verified the informant’s information about the color and make of the defendant’s car, the out-of-state license plates, the estimated time and place of arrival at a location known for its drug activity, and the defendant’s general description, but they also witnessed furtive activity by the defendant. “What followed the defendant’s arrival at the cafe at the generally predicted time and in a vehicle which fit the general description given in the tip was that the defendant left the vehicle with one person, returned with another who had an eight year old drug conviction, and moved the vehicle from an illuminated area to an unilluminated area.” (Emphasis added.) Id., 615-16.

In that case, this court held that the amount of detail of the tip and the police officer’s corroboration were “moderate, to say the most.” Id., 614. Even in applying the more liberal federal Gates standard, the court held that “[wjhile this activity may well have given . . . reasonable and articulable suspicion that the predicted drug sale was taking place, and while this is a close case, we cannot say that the amount of the detail originally supplied was enough, and that it was sufficiently corroborated by further detail” to support probable cause. Id., 616.

In State v. Love, supra, our Supreme Court held that when the officers detained the cab in which the defendant was a passenger they had a reasonable and articulable suspicion justifying only a Terry stop. In Love, a known and reliable informant said that the defendant would arrive by train in Bridgeport from New York with narcotics, and he might be with a female. The officer knew the defendant from prior narcotics investigations, he saw the defendant come from under the railroad tunnel in Bridgeport with a female at the generally predicted time, and he saw the two get into a cab. State v. Love, supra, 598. The officer approached the car for investigatory purposes and observed the defendant pass a bag to the female, who in turn, threw it out of the cab. It was not until the officer saw the defendant furtively pass the bag to the female, and the female discard it, that there was probable cause to arrest. Id., 589-99.

This court held in State v. Rodriguez, supra, that where the informant had given a detailed tip, the detail of which was corroborated, the stop of the defendant was justifiable only as an investigatory Terry stop because the police had only a “reasonable and articulable suspicion.” Id., 144. The informant in Rodriguez had provided reliable information on fourteen occasions with only one inconsequential inaccuracy as to the amount of contraband. The police officer received a detailed tip from this informant that “on the next day, at about 7:30 p.m., the defendant would be arriving at 363 Capitol Avenue in Hartford, from New York . . . in a yellow Chevrolet Monte Carlo and would be in possession of 600 silver heat sealed bags of heroin.” Id., 141. The officer corroborated the information when he observed the defendant approach the predicted area and walk toward a green station wagon with two companions and his seven year old son.

The officers then approached the defendant to conduct a Terry stop but did not attempt to apprehend the defendant. Upon approaching the group, the officer saw one of its members drop a silver heat sealed bag that he knew to be the type used to carry drugs. It was not until the officers saw someone in the group drop one of the silver heat sealed bags that reasonable suspicion heightened into probable cause. Id., 142-43.

Finally, in United States v. Yanes, supra, the Connecticut District Court held that FBI agents did not have probable cause to arrest the defendant until the defendant actually performed acts consistent with the anticipated drug deal. In Yanes, an FBI informant provided information that the codefendant, Gorski, was interested in selling cocaine. The informant predicted that Gorski would come to Connecticut on April 16, 1987, to discuss drug transactions. An FBI agent arranged for the person who was to meet Gorski to wear a transmitter and for FBI agents to monitor the meeting. The agents heard Gorski discuss a proposed drug deal in detail. They heard that the defendant Yanes was to be the source of the drugs that Gorski was to pick up and deliver to a buyer in Connecticut. Id., 929. Gorski was familiar with selling large quantities of cocaine, and he would arrange the purchase from Yanes and the delivery from the carrier in Florida to a buyer in Connecticut. The conversations also suggested that Gorski had been involved in prior drug deals. Id.

The prospective buyer spoke with Gorski and Yanes to confirm the sale. On April 26, he arranged to consummate the sale the following day between 5 and 6 p.m. with a courier whom he described and who was to arrive by bus. The agents observed Gorski meet a man who fit the description of the courier at the terminal, take a black travel bag from him and walk with him to meet the prospective buyer at his car. At that point, the agents surrounded the group and arrested the defendants. Id.

In applying federal law, the court held that even though the proposed drug deal was detailed and the police monitored the conversations, “the plan was only a plan and this information alone would not have provided probable cause for the arrests, seizure and search.” Id. The court further held that probable cause existed because “the agents’ information was closely corroborated by Gorski’s conduct on April 27, 1987. Specifically . . . Gorski met Cabrera, a man who fit Gorski’s prior description of his drug courier; Cabrera carried a bag and Gorski brought Cabrera with the bag to meet the prospective purchaser . . . .” (Emphasis added.) Id., 929-30. The court stated explicitly that because the conduct of the parties “corroborated the transaction . . . [aft that point [when all the parties met], there was a reasonable basis to believe that Gorski was about to deliver a kilogram of cocaine to consummate the previously arranged sale.” (Emphasis added; citations omitted.) Id., 930.

Our courts have repeatedly held that “ ‘[p]robable cause means more than mere suspicion. . . .’” State v. Martin, supra, 612B, quoting State v. Penland, supra, 155. In this case, while the police may have had a legitimate suspicion that the defendant had cocaine with him when he arrived at the 7-Eleven, such conjecture does not rise to the level of probable cause to believe that cocaine, in fact, was there. State v. DeChamplain, supra, 533.

Here, the police had only a tip given by an untested informant acting upon the request of police officers while in their custody and providing only general information about an alleged drug deal that the police never actually heard was supposed to occur. There was insufficient information available to the police from which they could determine that this informant or his information was reliable. The fact that the police verified that the informant dialed the defendant’s telephone number has little significance because the police did not know to whom, if anyone, the informant spoke. “In and of itself the listing of a telephone number to this individual suggests no criminal activity.” State v. DeChamplain, supra. The informant allegedly reached the defendant at DePortivo’s, not at his home. Further, that the police verified that the informant dialed the telephone number for DePortivo’s is of little significance because the police heard only the informant’s side of the conversation. Having made no attempts to verify that the informant was speaking to the defendant, the police had no way of knowing that he actually was; he could have been speaking to anyone at the social club.

The police went only so far as to verify that the defendant arrived at the store. Nothing beyond innocent aspects of the defendant’s behavior was verified. The police did not attempt to conduct a controlled buy or place the informant in a place where they might witness some other suspicious behavior of the defendant.

We are presented with nothing analogous to the silver heat sealed bag as in Rodriguez or the furtive bag dropping as in Love. Had the police officers merely stopped the defendant for investigative purposes as in Rodriguez and Love, rather than arresting him, such an act may have been justified. As a result of a stop, “events or circumstances may arouse further suspicion in an officer’s mind [leading to probable cause] or dispel questions that arose.” State v. Rodriguez, supra, 146; State v. Love, supra, 601. Here, however, there are few circumstances corroborating the informant’s information, except the fact that the defendant arrived at this particular place when the police were there. State v. Kimbro, supra, 228. By placing the defendant under arrest, the police officers acted prematurely, arresting him before their suspicions developed into probable cause.

There is error, the trial court’s denial of the motion to suppress is reversed and the case is remanded with direction to grant that motion.

In this opinion the other judges concurred.

       General Statutes § 21a-278 (b) provides in pertinent part: “Any person who . . . possesses with the intent to sell or dispense . . . any narcotic substance . . . and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less than ten years nor more than twenty-five years.”

       General Statutes § 54-94a provides in pertinent part: “When a defendant . . . enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure . . . the defendant after the imposition of sentence may file an appeal within the time prescribed by law.”

       The fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution protect the right of the people to be free from unreasonable searches and seizures.

       The Tri-Town Task Force consists of the Manchester, Vernon and South Windsor police departments specializing in narcotics and other drug related activities.

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

       A clear line is a telephone line that has a phone number different from the general police department phone number and is answered with a simple “Hello.”

       Both sides agree that, at the moment the police blocked the defendant’s car, took his keys and prevented his departure, the defendant was under arrest.

       Although it may have been sufficient to create a reasonable suspicion justifying a Terry stop, the state did not attempt to justify the warrant-less seizure on the basis that it was an investigatory stop to be measured by reasonable and articulable suspicion, nor was their conduct supportive of such an assertion. Upon blocking the defendant’s car, they removed him from it and searched him. Cf. State v. Martin, 2 Conn. App. 605, 612-612A, 482 A.2d 70 (1984).

       The court in State v. Martin, 2 Conn. App. 605, 482 A.2d 70 (1984), addresses a federal constitutional claim, and therefore proceeds under the federal standard of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). This case is still relevant because if the case fails under the federal standard it must necessarily fail under our stricter Kimhro standard. State v. Kimbro, 197 Conn. 219, 496 A.2d 498 (1985).

       The informant’s first statement concerning the location of his cocaine was a statement against penal interest. That, however, is an insufficient basis upon which to credit the subsequent information that the informant relayed concerning his telephone conversation with someone he alleged to be the defendant.

       The trial court determined that at this point the police had probable cause to arrest the defendant. This ruling was erroneous. In State v. DeChamplain, 179 Conn. 522, 532, 427 A.2d 1338 (1980), our Supreme Court held that “[t]elephone calls by an informant to a particular number to ‘order’ illicit drugs do not per se establish probable cause to believe that the drugs themselves are located in the same premises as the telephone at which the ‘order’ is received.” This rationale applies to the present case as well. The fact that the defendant ordered the drugs does not mean that the deal will actually occur.


text:
    State of Connecticut v. Christine Kaplan
    (7550)
    Borden, O’Connell and Foti, Js.
    Argued September 19
    decision released October 31, 1989

      Peter Scillieri, assistant public defender, for the appellant (defendant).

      Kevin T. Kane, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, state’s attorney, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of illegal possession of cocaine with intent to sell by a person who is not drug-dependent, in violation of General Statutes § 21a-278 (b), and possession of drug paraphernalia, in violation of General Statutes § 21a-267 (a). The defendant claims that the trial court erred in denying her motion to suppress certain cocaine found in her purse, because the search of her purse was made without a warrant and without probable cause. She also claims that her inculpatory statement made subsequent to her arrest should have been suppressed because it was the fruit of the illegal search. The dispositive issue is whether the search of the defendant’s purse was incident to a lawful warrantless arrest. We conclude that the search was valid and that, therefore, neither the cocaine nor the statement was subject to suppression.

The following evidence was adduced at the suppression hearing. The defendant was in the apartment of John Santiago while a search warrant for narcotics located therein was being executed. The defendant was instructed by Detective Gerard Gaynor of the New London police department to remain seated on a couch in the living room. The defendant asked if she could take a “Tylenol,” and Gaynor approved her request. The defendant picked up her purse from the floor. Gaynor saw the defendant remove a prescription bottle from her purse. He asked her for the bottle and she handed it to him. Gaynor saw that the prescription label was not in the defendant’s name, and that the type of medication printed on the label was not Tylenol. He looked in the bottle, saw four tablets, and then asked the defendant what the pills were. The defendant stated that they were Valium. Gaynor then brought the bottle to Lieutenant William Gavitt and informed him of what had just occurred. Gavitt took possession of the bottle, looked inside it, and saw that the pills were not Tylenol. Gavitt, believing that the possession of prescription medication prescribed to someone else was probably illegal and that other contraband would be found in her purse, directed the defendant to dump the contents of her purse on the floor. Upon examination of the contents, he saw what appeared to him, based on his experience, to be a packet of cocaine. The defendant was immediately placed under formal arrest and informed of her rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Thereafter, the police conducted a field test on the white powder and determined it was cocaine. During the postarrest interrogation of the defendant, she stated, “I forgot the stuff was there.” The ensuing warrant-authorized search of the apartment yielded drug paraphernalia and additional cocaine connected with the defendant.

The court denied the defendant’s motion to suppress. The cocaine found in the defendant’s purse and her inculpatory statement regarding it were introduced into evidence, together with the other incriminatory evidence found in the apartment. In addition, the trial court found that the search of the defendant’s purse took place when Gavitt directed the defendant to dump its contents on the floor. On appeal, neither the defendant nor the state challenges that finding. We therefore analyze this case accordingly.

One recognized exception to the warrant requirement is that evidence obtained pursuant to a search conducted incident to a lawful custodial arrest is admissible. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981); State v. Holder, 18 Conn. App. 184, 187, 557 A.2d 553 (1989). General Statutes § 54-If enumerates the circumstances under which a law enforcement officer may lawfully make a warrantless arrest. Warrantless misdemeanor arrests are governed by General Statutes § 54-If (a), which authorizes peace officers to arrest, without a warrant, “any person for any offense in their jurisdiction, when the person is taken or apprehended in the act or on the speedy information of others . . . .”

A lawful warrantless misdemeanor arrest requires, as does a lawful warrantless felony arrest, that the arrest be supported by probable cause. State v. Elliott, 153 Conn. 147, 152-53, 215 A.2d 108 (1965). “ ‘ “In order to establish probable cause, it is not necessary to produce a quantum of evidence necessary to convict. . . . 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.” (Citations omitted.)’ ” State v. Holder, supra, quoting State v. Cobuzzi, 161 Conn. 371, 376, 288 A.2d 439 (1971), cert. denied, 404 U.S. 1017, 92 S. Ct. 677, 30 L. Ed. 2d 664 (1972). “In testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer but the collective knowledge of the law enforcement organization at the time of the arrest which must be considered.” State v. Holder, supra, 188.

Moreover, probable cause for an arrest is based on the objective facts available to the officer at the time of arrest rather than the subjective state of mind of the officer. See Scott v. United States, 436 U.S. 128, 138, 98 S. Ct. 1717, 56 L. Ed. 2d 168 (1978); State v. Copeland, 205 Conn. 201, 208 n.3, 530 A.2d 603 (1987); State v. Martin, 2 Conn. App. 605, 612, 482 A.2d 70 (1984), cert. denied, 195 Conn. 802, 488 A.2d 457, cert. denied, 472 U.S. 1009, 105 S. Ct. 2706, 86 L. Ed. 2d 721 (1985). “There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information sufficient to justify the belief of a reasonable person that an offense has been or is being committed.” State v. Copeland, supra, 213.

The firsthand information obtained by the officers prior to the search of the defendant’s purse included Gaynor’s observation of the defendant holding a prescription bottle after she had stated that she was going to take a Tylenol, a nonprescription medication; the defendant’s statement that the pills were Valium; the fact that the prescription was not in the defendant’s name; the fact that the bottle’s contents as stated on the label were not Tylenol; and Gavitt’s inspection of the pills that led him to believe, on the basis of his experience, that the pills were not Tylenol. These observations, viewed objectively, provided probable cause to believe that the defendant was in illegal possession of a controlled substance in violation of General Statutes § 21a-279 (c). Thus, based on an objective assessment by the police, in light of the facts and circumstances collectively known to them, there was probable cause to arrest the defendant for this offense prior to searching her purse.

Notwithstanding that there was probable cause to arrest the defendant for illegal possession of a controlled substance prior to the search, the defendant nevertheless suggests that this was not a valid search incident to arrest. She claims that because she was not arrested prior to the search, and because the police seized contraband relating to the more serious offense of possession of cocaine with intent to sell, an offense for which the police had no probable cause to arrest, the search is invalid. We find both of these arguments to be unavailing.

A formal arrest need not always chronologically precede the search in order for the search to be valid. Where there is probable cause to arrest, a search before an arrest is reasonable under the fourth amendment as long as the arrest and search and seizure are substantially contemporaneous, and are integral parts of the same incident. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980); State v. Federici, 179 Conn. 46, 54-55, 425 A.2d 916 (1979). In this case, the search of the defendant’s purse was close in time and place to when the police initially obtained probable cause to arrest her for a violation of General Statutes § 21a-279 (c). The two events were integral parts of the same incident. State v. Holder, supra, 188-89. It is also of no moment that the defendant was neither charged with nor convicted of illegal possession of a controlled substance in violation of General Statutes § 21a-279 (c). A defendant need not be subsequently charged with or convicted of the offense that gave the police probable cause to- arrest. See United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (defendant convicted of narcotics offense arising from a search incident to arrest for driving under revoked license); State v. Copeland, supra (defendant convicted of arson arising from a search incident to arrest for disorderly conduct and breach of the peace).

The defendant also suggests that the lack of probable cause to arrest for the cocaine offense prior to the search rendered the search invalid. We disagree. Just as a search incident to an arrest is not limited to evidence of a crime for which the defendant has been formally charged; State v. Copeland, supra, 211; there is no requirement that a search incident to an arrest be limited to evidence for which the police have probable cause to arrest. As long as there is objective probable cause to arrest, the fact that the search yields gold when the police were anticipating only lead is of no consequence. A valid search incident to arrest requires only that there be probable cause for the initial arrest; there is no corresponding requirement of probable cause for the subsequent search. See United States v. Robinson, supra.

The defendant also claims that her statement should have been suppressed because it was the fruit of an illegal search. See Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Since the search in question was lawful, there is no basis for this claim.

There is no error.

In this opinion the other judges concurred.

       The defendant does not contest the admissibility of the evidence seized pursuant to the warrant.

       General Statutes § 21a-279 (c) provides in pertinent part: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance . . . except as authorized in this chapter, may be fined not more than one thousand dollars, or be imprisoned . A controlled substance, as defined in General Statutes § 21a-240 (9), is “a drug, substance, or immediate precursor in schedules I to V, inclusive, of the Connecticut controlled substance scheduling regulations . . . .” Valium, or diazepam, is one of the drugs listed in schedule IV of the regulations as “having a potential for abuse associated with a depressant effect on the central nervous system.” Regs., Conn. State Agencies § 21a-243-10 (a) (14).

       Our conclusion that the search was valid as incident to the defendant’s lawful arrest renders it unnecessary to consider the state’s argument that the search of the defendant’s purse was within the authorization granted by the search warrant because probable cause existed that the objects named in the warrant were on her person.


author: O’Connell, J.

text:
    State of Connecticut v. Dilaver Cazimovski
    (7430)
    Borden, O’Connell and Foti, Js.
    Argued September 19
    decision released October 31, 1989

      Wesley S. Spears, with whom, on the brief, was John Loconsolo, for the appellant (defendant).

      RitaM. Shair, deputy assistant state’s attorney, with whom were John Connelly, state’s attorney, and, on the brief, Marcia Smith, assistant state’s attorney, and Maria Kahn, law student intern, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of three counts of sale of a narcotic substance in violation of General Statutes § 21a-277 (a). The defendant claims the trial court erred in interrupting his direct examination of a defense witness and in summarizing the evidence in a biased manner in its jury charge, and in making other improper comments to the jury. We find no error.

The defendant first claims that the trial court improperly interfered with the direct testimony of a defense witness by interrupting to ask if the state wanted to object to a question put to the witness. The defendant neither objected to the court’s intervention at that time nor did he move for a mistrial because of perceived judicial misconduct. Only under exceptional circumstances will this court review a claim that is raised here for the first time. Practice Book § 4185; State v. Evans, 165 Conn. 61, 67-70, 327 A.2d 526 (1973). Review may be appropriate if a new constitutional right has arisen between the time of trial and appeal or where the record adequately supports a claim that the defendant has been deprived of a fundamental constitutional right and a fair trial. State v. Evans, supra, 70.

The decision of our Supreme Court in State v. Bailey, 209 Conn. 322, 551 A.2d 1206 (1988), sets out four discrete questions that are part of any Evans review. State v. Bailey, supra, 329-30 n.4. First, we look to see if the defendant’s claim implicates a fundamental constitutional right. Id. In response, we agree that the defendant’s claim satisfies this requirement because interruption of the direct examination of a defense witness may impinge upon the defendant’s right to a fair trial before an impartial judge in a neutral atmosphere. State v. Delarosa, 16 Conn. App. 18, 26-27, 547 A.2d 47 (1988).

We next conduct a limited review of the record to see if the claim is truly of constitutional proportions. State y. Bailey, supra. The defendant’s claim fails under this second question. After a limited review of the record, we conclude that the claim is not truly of constitutional proportions. We find that the interruption was an isolated incident that took place in the context of a seven day trial in which twelve witnesses testified. We take particular note of the fact that the defendant’s counsel did not consider the interruption to be significant enough to warrant an objection or a motion for a mistrial. See State v. Mack, 197 Conn. 629, 642, 500 A.2d 1303 (1985). We conclude that the court’s solitary inquiry did not raise the issue to one of constitutional proportions, and we decline to review it.

The main point of the defendant’s second claim of error is that, in summarizing the facts during the jury charge, the court marshalled the evidence in a manner that unfairly favored the state. We disagree. It is well established that a court may comment to the jury on the weight of the evidence as long as it does not direct the jury as to how to resolve a particular question. State v. Pyles, 17 Conn. App. 460, 465, 553 A.2d 1152 (1989). In fact, in some cases it is the trial court’s duty to refer to testimony in order to assist the jury in relating the facts to the law. State v. Gallman, 16 Conn. App. 433, 435, 547 A.2d 932 (1988). Jury instructions must go beyond a mere recitation of legal principles. State v. Sumner, 178 Conn. 163, 170-71, 422 A.2d 299 (1979); State v. Gallman, supra. It would be a Herculean task, and not one required under our law, for the trial court to achieve exact parity in the time spent on comments on both the prosecution and defense portions of a case. “ ‘ “[T]he fact that the claims or evidence of one party are stated at much greater length than those of the other does not by itself render the court’s summary of the evidence in its charge unfair.” ’ ” State v. LaCasse, 9 Conn. App. 79, 85, 516 A.2d 145, cert. denied, 201 Conn. 815, 518 A.2d 72 (1986), quoting Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 592, 356 A.2d 873 (1975).

In the present case the court gave appropriate attention to the evidence of each side and properly referred to relevant evidence to assist the jury in applying the law to the facts. The court’s comments on the evidence were not improper.

We have reviewed the remainder of the defendant’s claims concerning the trial court’s remarks to the jury and conclude that they have no merit.

There is no error.

In this opinion the other judges concurred.

       “Review under State v. Evans, 165 Conn. 61, 327 A.2d 526 (1973), involves four discrete questions. ‘ “First, does the defendant raise an issue which, by its terms, implicates a fundamental constitutional right? . . .
      “ ‘ “Second, is the defendant’s constitutional claim adequately supported by the record? ... In those instances in which the Supreme Court . . . has already clearly indicated that the particular claim is or is not of constitutional proportions and therefore reviewable or not reviewable, a summary ‘yes’ or ‘no’ answer may be sufficient.
      “ ‘ “Third, ‘was there, in fact, based on the record, a deprivation of a constitutional right of a criminal defendant?’ . . .
      “ ‘ “Fourth, ‘did the deprivation deny the defendant a fair trial, thereby requiring’ that his conviction be set aside. Id. . . .” ’ ” (Citations omitted.) State v. Bailey, 209 Conn. 322, 329-30 n.4, 551 A.2d 1206 (1988).


text:
    State of Connecticut v. Gary Blackwell
    (7037)
    Daly, O’Connell and Norcott, Js.

      Argued September 13
    decision released October 31, 1989

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

      JuliaDiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Patrick J. Clifford, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) and sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (l). He does not appeal his conviction for risk of injury to a child in violation of General Statutes § 53-21 that arose out of the same events.

The defendant makes two claims of error. First, he asserts that he was unconstitutionally punished twice for the same offense. Second, he claims that the trial court improperly denied his motion to suppress certain pornographic materials that were seized without a search warrant. We find no error.

The jury could reasonably have found the following facts. The victim was a fifteen year old boy who frequented the amusement arcade where the defendant was employed. The defendant cultivated a friendship with the victim, and on numerous occasions showed him pornographic magazines and playing cards that the defendant kept in the employees’ bathroom, a facility generally not available to the public. On July 9, 1987, the victim obtained permission to use this bathroom. Shortly after the victim had entered and locked the bathroom door, the defendant unlocked the door and came into the room. He then held a seven inch sheath knife to the victim’s throat and sexually assaulted him.

I

In his first claim of error, the defendant argues that his convictions for first and second degree sexual assault violate the constitutional prohibitions against double jeopardy because both arise from the same incident. He bases his argument not on the fifth amendment to the United States constitution but rather on our state constitution. We note that Connecticut courts have consistently followed the double jeopardy analysis used in the federal courts. See, e.g., State v. Thompson, 197 Conn. 67, 71-73, 495 A.2d 1054 (1985); State v. Rothenberg, 195 Conn. 253, 264-65, 487 A.2d 545 (1985); State v. Delgado, 19 Conn. App. 245, 249-56, 562 A.2d 539 (1989). As the defendant has failed to propose any new analysis or indicate any significant distinction that would lead us to conclude that his prosecution violated the double jeopardy protection of our state, but not the federal constitution, we will apply the established analysis.

The defendant’s claim involves “that strand of double jeopardy jurisprudence that ‘protects against multiple punishments for the same offense.’ North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).” State v. Delgado, supra, 250. Double jeopardy protection is compromised only if the charges arise out of the same act or' transaction and if the charged crimes are in reality the same offense. State v. Snook, 210 Conn. 244, 264, 555 A.2d 390, cert. denied, U.S. , 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989). Because there is no dispute that the charges here grew out of only one incident, we must determine whether they are, for the purposes of double jeopardy analysis, the same crime.

In situations such as this, “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); State v. Snook, supra. Even though there may be considerable overlap in the evidence offered to prove each crime, the cases are not the same under Blockburger if each statute requires proof of a fact that the other does not. Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); State v. Lonergan, 16 Conn. App. 358, 365-66, 548 A.2d 718 (1988), cert. granted on other grounds, 210 Conn. 812, 556 A.2d 611 (1989).

The defendant concedes, as he must, that under the Blockburger test, sexual assault in the second degree is not a lesser included offense of sexual assault in the first degree. This concession recognizes that it is possible to commit sexual assault in the first degree without first having committed sexual assault in the second degree. State v. Franko, 199 Conn. 481, 494, 508 A.2d 22 (1986). The plain language of the two statutory sections indicates that while sexual assault in the first degree requires proof of force or threatened use of force, sexual assault in the second degree does not. Id. Furthermore, in order to convict a defendant of sexual assault in the second degree, the state must show that the victim was under the age of sixteen. Id. The statute proscribing sexual assault in the first degree contains no similar requirement. Id. The defendant is incorrect when he contends that these distinctions are merely nominal and that the crimes are substantially the same for double jeopardy purposes. Application of the Blockburger test demonstrates that these are separate crimes for which the defendant could be prosecuted and punished without violating the prohibition against double jeopardy.

This does not end our analysis, however. As this court recently discussed, the Blockburger test is not a conclusive presumption but a rule of statutory construction that may be rebutted by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes. State v. Delgado, supra, 255.

The defendant has not convinced us that the legislature intended that sexual assault in the first degree and sexual assault in the second degree be two crimes, nominally distinct, for which only one penalty could be imposed. As already noted, it is possible to convict a defendant of one crime and not the other because each requires proof of facts that the other does not. Stale v. Franko, supra, 494. The gravamen of sexual assault in the first degree is the protection of all persons from being compelled to engage in sexual activity by force or threat of force. On the other hand, the statute proscribing sexual assault in the second degree was drafted to prohibit persons from engaging in sexual activity with individuals who are deemed to lack the capacity to consent. There is no indication that these two clearly separate offenses were intended by the legislature to constitute one crime for double jeopardy purposes.

There is no error on the defendant’s first claim.

II

The defendant’s second claim arises out of the trial court’s denial of his motion to suppress certain evidence. As part of their investigation, the police obtained a warrant authorizing them to search the amusement arcade for the knife and the pornographic materials. The latter were sought as evidence and as instrumentalities of the risk of injury offense. When this search proved unsuccessful, the officers obtained a second search warrant, that one for the defendant’s residence. The second warrant was for only the knife. In the course of the search of the defendant’s residence, an officer opened a drawer in a night table next to the defendant’s bed and saw pornographic material that he recognized as that described by the victim. The officer seized a portion of the material and photographed the remainder.

The defendant moved to suppress that material on the grounds that it was seized in violation of the defendant’s rights against unlawful searches and seizures under the fourth, fifth, sixth and fourteenth amendments to the United States constitution and unspecified portions of the state constitution. The trial court denied the motion on the ground that the items had been discovered inadvertently during a legal search of the night table and, therefore, the seizure was lawful under the plain view doctrine. We agree.

It is well established that “where a police officer has a warrant to search a given area for specified objects, and in the course of the search comes across some other article of incriminating character the property is seizable under the plain view doctrine.” United States v. Pocelli, 470 F.2d 67, 70 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S. Ct. 1501, 36 L. Ed. 2d 178 (1973); State v. Hobson, 8 Conn. App. 13, 18, 511 A.2d 348 (1986), cert. denied, 480 U.S. 917, 107 S. Ct. 370, 94 L. Ed. 2d 686 (1987). “The test for plain view seizures requires (1) that the police intrusion which leads up to the view must be legal; (2) that the discovery of the evidence must be inadvertent; and (3) that the police must have probable cause to believe there is a reasonable relation between the evidence seized and the criminal behavior under investigation.” State v. Altrui, 188 Conn. 161, 179, 448 A.2d 837, 846 (1982), citing Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S. Ct. 2022, 29 L. Ed. 2d 564, reh. denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971).

The defendant argues that the discovery in this case was not inadvertent because the police should have known that the pornographic materials were as likely as the knife to be in the defendant’s apartment, and they should have included them in the search warrant. The mere fact, however, that the police were aware of the possibility that they might find incriminating evidence in the defendant’s apartment is not enough to render the search unlawful if “they did not anticipate the discovery or know in advance the location of the evidence and intend to seize it.” State v. Pepe, 176 Conn. 75, 80, 405 A.2d 51 (1978). The record here does not demonstrate that the officers knew the pornographic material was in the night table and went there intending to seize it, using the search warrant for the knife as a subterfuge.

The police were properly on the premises searching for a knife. They lawfully opened a night table drawer and observed, in plain view, the pornographic material which they recognized as evidence and instrumentalities of the crime of injury or risk of injury to a child, a crime that they were investigating. The denial of the motion to suppress was proper.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person . . . .”

       General Statutes § 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       Although the Connecticut constitution does not contain a specific double jeopardy provision, the common law rule against double jeopardy has been adopted as necessary through the due process guarantee of article first, § 9. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

       In addition to persons under sixteen years of age, General Statutes § 53a-71 (a) also prohibits sexual intercourse with a person who is “(2) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual intercourse, or (3) physically helpless, or (4) less than 18 years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (5) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person.”

       Although the defendant relies on both the federal and state constitutions, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of his federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.l, 513 A.2d 718 (1986).
      The defendant also claims, for the first time on appeal, that the seizure of the material was barred by the first amendment to the United States constitution. We note that his motion to suppress in the trial court was not grounded on the first amendment. We are not bound to consider claims of law not distinctly raised below. State v. Petterson, 17 Conn. App. 174, 185, 551 A.2d 763 (1988).


author: Daly, J.

text:
    Northeast Gunite and Grouting Corporation v. Robert Chapman, Jr.
    (7196)
    Daly, Norcott and Foti, Js.
    Argued September 19
    decision released October 31, 1989

      James D. Reardon, for the appellant (defendant).

      Stephen G. Silverberg, for the appellee (plaintiff).
   Daly, J.

The defendant appeals from a judgment rendered in favor of the plaintiff holding the defendant personally liable on a contract. The defendant claims that the court erred (1) in finding the defendant personally liable, (2) in granting the plaintiffs motion to strike the defendant’s special defense, and (3) in denying the defendant’s motion to substitute a party defendant. We find no error.

On September 18, 1986, the plaintiff subcontractor agreed to apply gunite to a natural style inground pool or “grotto” being built by the defendant contractor for an open price. This agreement was set down in a writing prepared by the plaintiff. While the first paragraph of the written agreement stated that the defendant’s business, Chapman Pools ’N Spa, was a corporation, there was no place in the agreement where the designation corp., co., inc. or ltd. followed the business name. In addition, the defendant did not affix any title, or indicate next to his signature that he was signing in a representative capacity. At some point during the plaintiff’s work, a dispute arose regarding the amount of money owed. The defendant made partial payment with a check bearing the name of the business, but with no express indication that the business was a corporation. The plaintiff completed work and demanded payment for the remaining monies owed. The defendant refused to pay and the plaintiff began this suit.

On June 17, 1988, less than two weeks before trial, the defendant filed a special defense without leave of the court or consent of the opposing party. The special defense stated that the plaintiff dealt with a de facto or de jure corporation and is estopped from denying its existence, and that the defendant had no individual liability for the contract. On June 22, 1988, the plaintiff filed a motion to strike the special defense claiming that it was improperly filed in violation of Practice Book § 176. The trial court granted the plaintiff’s motion at trial by treating it as a request to revise and ruling that the “special defense is out of the case.” On the day of trial, the court also heard and denied the defendant’s motion to substitute a party defendant that was filed that day. That motion requested that the name Chapman Pools ’N Spa be substituted for Robert Chapman, Jr., doing business as Chapman Pools ’N Spa. The trial court found the defendant personally liable and rendered judgment in favor of the plaintiff for $10,500, inclusive of interest at 10 percent per annum, but denied the plaintiffs request for attorney’s fees and interest at 18 percent per annum.

The defendant’s first claim of error is that the court erred in finding him personally liable on the contract because the court did not give proper weight to the evidence. “It is familiar law that ‘[i]t was for the trial court to weigh the evidence and determine the credibility of the witnesses. This court cannot and will not weigh the evidence contained in the record before us. Edgewood Construction Co. v. West Haven Redevelopment Agency, 170 Conn. 271, 272, 365 A.2d 819 (1976).’ ” Cashman v. Calvo, 196 Conn. 509, 513, 493 A.2d 891 (1985).

In essence, the defendant is alleging that the plaintiff did not prove that the defendant is personally liable on the contract. “Whether the plaintiff sustained his burden of proof is a question of fact for the trier. Our job in reviewing a factual determination of the trial court is limited. ‘We are not the finders of fact; that is for the trial court.’ Capmar Construction, Inc. v. Coyle, 4 Conn. App. 579, 580, 495 A.2d 1115 (1985). Our job is merely to examine if there is sufficient evidence in the record to support the decision of the trial court. Cashman v. Calvo, [supra, 514].” Presnick v. DeRosa, 12 Conn. App. 554, 557, 532 A.2d 1309 (1987).

There is sufficient evidence in this case. The written agreement merely stated the defendant’s business name, with no indication that it was a corporation. The only time the word “corporation” appeared in the agreement was in the first paragraph, and there was testimony that the word appeared because of a secretarial error. The defendant’s signature does not indicate that he signed in a representative capacity because he did not affix any title beneath his signature. He only signed in his individual capacity on the “authorized signature” line at the end of the written agreement. In addition, when the defendant signed the check in partial payment, he did not affix any title beneath his name. Furthermore, only the business name was printed on this check with no indication that the business was incorporated. The court did not err in finding that the defendant signed in an individual capacity and is, therefore, personally liable.

The defendant’s second claim of error is without merit. The trial court did not err in granting the plaintiff’s motion to strike the special defense because the defendant did not comply with the provisions of Practice Book § 176.

There is also no error in the trial court’s denial of the defendant’s motion to substitute a party defendant filed on the scheduled trial date. “ ‘A trial court has wide discretion in granting or denying amendments to the pleadings and rarely will this court overturn the decision of the trial court.’ Hanson Development Co. v. East Great Plains Shopping Center, Inc., 195 Conn. 60, 67, 485 A.2d 1296 (1985). ‘Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment.’ Beckman v. Jalich Homes, Inc., 190 Conn. 299, 302-303, 460 A.2d 488 (1983).” Cabinet Realty, Inc. v. Planning & Zoning Commission, 17 Conn. App. 344, 348, 552 A.2d 1218, cert. denied, 210 Conn. 813, 556 A.2d 610 (1989). Because the motion to substitute a party defendant was filed on the brink of trial, we cannot say that the trial court abused its discretion in denying the defendant’s motion.

There is no error.

In this opinion the other judges concurred.

       The defendant was charged by the amount of labor and materials used to complete the job.

         The plaintiff, in its brief, requested that, in the event a new trial is ordered, this court consider whether the trial court erred in not awarding attorney’s fees, and in awarding 10 percent interest per annum when the contract called for 18 percent interest per annum. Because we find no error, we need not consider those claims.

       The defendant, as part of his argument, states that the court did not give proper weight to the first paragraph of the plaintiff’s complaint which states, “On September 18, 1986, the plaintiff entered into a contract with a business entity known as ‘Chapman Pools ’N Spa’ believed at that time to be a Connecticut corporation . . . . ” The defendant argues that this pleading should be a judicial admission against the plaintiff and thus prevent the plaintiff from presenting evidence that it actually did not make a contract with a corporation. Even if the pleading were construed as a judicial admission, it would not have the effect proposed by the defendant. See Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 199, 286 A.2d 308 (1971); DelVecchio v. DelVecchio, 146 Conn. 188, 191, 148 A.2d 554 (1959).

       Practice Book § 176 provides in relevant part that “a party may amend his pleadings ... in the following manner:
      “(a) By order of court; or
      “(b) By written consent of the adverse party; or
      “(c) By filing a request for leave to file such amendment . . . .”