author: LANDAU, J.

text:
    T. CHRISTOPHER KILLION ET AL. v. IAN MARTIN DAVIS
    (AC 19034)
    Foti, Landau and Daly, Js.
    Argued March 30
    officially released August 15, 2000

      Jonathan Turley, pro hac vice, with whom were Lorey R. Leddy and, on the brief, Stefan Underhill, for the appellant (defendant).

      Ronald P. Mysliwiec, with whom were Steven D. Ecker and, on the brief, Leigh A. Newman, for the appellees (plaintiffs).
   Opinion

LANDAU, J.

The defendant, Ian Martin Davis, appeals from the judgment of the trial court rendered in favor of the plaintiffs, T. Christopher Killion and Brad J. Fel-enstein, in accordance with the report of an attorney trial referee in this breach of contract action. Although the defendant has raised four issues on appeal, one is dispositive; that is, whether the court improperly accepted the attorney trial referee’s conclusion that the defendant was personally liable for an oral promise to give bonuses to the plaintiffs, who were employees of the company of which the defendant was the principal owner. We reverse the judgment of the trial court.

The following facts provide a background for the dispositive issue. The defendant and his wife were the sole shareholders of Sports Marketing Group, Inc. (Sports Marketing), and contracted to sell their stock to Times Mirror Magazine (Times Mirror) for more than $5 million. Prior to the sale to Times Mirror, the defendant, who was also the president of Sports Marketing, informed the plaintiffs in separate conversations that they would each receive $100,000 if they remained with Sports Marketing for three years following the sale. The defendant and Times Mirror agreed that Times Mirror would withhold a portion of the purchase price due to the defendant and pay the plaintiffs directly at the end of three year s. Although the plaintiffs remained employed at Sports Marketing for the requisite three years, they did not receive the $100,000 promised to them.

The plaintiffs thereafter brought an action against the defendant rather than Sports Marketing or Times Mirror to enforce the oral promise. The matter was heard by an attorney trial referee, who issued a report concluding that the defendant should pay the plaintiffs $100,000 each plus prejudgment interest. While the attorney trial referee found that the defendant, in his conversations with the plaintiffs, never specifically referenced his personal responsibility to pay the bonuses, the trial referee did conclude that it was reasonable for the plaintiffs to assume that the defendant would be personally responsible for the payment of the money. The trial referee also concluded that the plaintiffs’ remaining employed for three years was for the benefit of the defendant in his sale of stock to Times Mirror and therefore evidenced the defendant’s personal responsibility to pay the bonuses. The court adopted the report in its entirety when it rendered judgment.

The defendant claims first that the facts, even as found by the attorney trial referee in his report, do not support the conclusion that the defendant intended personally to be liable for the promise to pay bonuses to the plaintiffs. Because the promise, according to the defendant, was made in his capacity as president of Sports Marketing, therefore, Sports Marketing was responsible for payment of the plaintiffs’ bonuses. We agree.

“The report of [an attorney trial referee] shall state, in separate and consecutively numbered paragraphs, the facts found and the conclusions drawn therefrom. . . .” Practice Book § 19-8 (a). “While the reports of [attorney trial referees] in such cases are essentially of an advisory nature, it has not been the practice to disturb their findings when they are properly based upon evidence, in the absence of errors of law, and the parties have no right to demand that the court shall redetermine the fact thus found. . . . Seal Audio, Inc. v. Bozak, Inc., [199 Conn. 496, 508, 508 A.2d 415 (1986)].” (Internal quotation marks omitted.) Kallas v. Harnen, 48 Conn. App. 253, 257, 709 A.2d 586, cert. denied, 244 Conn. 935, 717 A.2d 232 (1998). “A reviewing authority may not substitute its findings for those of the trier of the facts. This principle applies no matter whether the reviewing authority is the Supreme Court . . . the Appellate Court ... or the Superior Court reviewing the findings of . . . attorney trial referees. . . . This court has articulated that attorney trial referees and [fact finders] share the same function . . . whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” (Citations omitted; internal quotation marks omitted.) Post Road Iron Works, Inc. v. Lexington Development Group, Inc., 54 Conn. App. 534, 540, 736 A.2d 923 (1999).

“Although it is true that when the trial court reviews the attorney trial referee’s report the trial court may not retry the case and pass on the credibility of the witnesses, the trial court must review the referee’s entire report to determine whether the recommendations contained in it are supported by findings of fact in the report. It is also true that the trial court cannot accept an attorney trial referee’s report containing legal conclusions for which there are no subordinate facts.” Id., 541.

The plaintiffs in this case allege that the defendant made a personal promise to pay employment bonuses to them if they agreed to remain employed by Sports Marketing for three years. While the attorney trial referee agreed with the plaintiffs and concluded that the defendant was personally liable for promises he made to them, we cannot find support for such a conclusion in the facts found in the trial referee’s report or the record as a whole. The defendant, according to the report, never specifically referenced his personal responsibility for the payment of the bonuses to the plaintiffs. In fact, the plaintiff Killion testified in his deposition that he recalled the defendant telling him that Sports Marketing was going to pay for the bonus. Under these circumstances, the trial referee’s conclusion that the defendant was personally hable for the promise is without support in the record.

“Upon the facts found we have the case of an agent within the scope of his authority contracting with a third party for a known principal, and no fact in the finding shows that the contract was with the agent personally. Under such circumstances, the liability is upon the principal and the agent is not liable.” Whitlock’s Inc. v. Manley, 123 Conn. 434, 437, 196 A. 149 (1937). We cannot support the conclusion of the trial referee that the president of a corporation, when making a promise to corporate employees about bonuses they were to receive for their job performance, can be held personally responsible for the promise, especially when the facts as found in the report state, specifically, that the defendant never referenced his personal responsibility. Therefore, on the basis of the facts found in the report of the attorney trial referee, we conclude that the defendant was entitled to judgment as a matter of law.

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred. attorney, and Rosita M. Creamer, senior assistant state’s attorney, for the appellee (state).

       The defendant also claims that the court improperly (1) concluded that the oral agreement to pay the plaintiffs was not barred by the statute of frauds, (2) failed to correct factual and legal errors in the attorney trial referee’s report and (3) abused its discretion by awarding prejudgment interest. Because we agree with the defendant on the issue of personal liability, we do not reach his three other claims.

       The plaintiffs had been working for the small company since its inception.


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JAMES C. SERVELLO
    (AC 18884)
    SchaUer, Spear and Pellegrino, Js.

      Argued May 8
    officially released August 15, 2000

      Jon L. Schoenhom, with whom, on the brief, was Jeanne M. Zulick, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s
   Opinion

SCHALLER, J.

The defendant, James C. Servello, appeals from a judgment of conviction, rendered following a jury trial, of attempt to commit arson in the second degree in violation of General Statutes §§ 53a-49 and 53a-112 (a) (2). The defendant claims that (1) the trial court improperly denied his motion for a judgment of acquittal because the evidence was insufficient to support the jury’s verdict of guilty of attempt to commit arson in the second degree, (2) the trial court improperly allowed the state to offer details of his prior arson conviction and other bad acts after ruling to exclude them, and (3) the prosecutor’s offer of evidence contrary to the court’s order violated his right to a fair trial. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In 1992, David Shepack, assistant state’s attorney, prosecuted the defendant for arson in the first degree, arson in the second degree, arson in the third degree, criminal mischief, two counts of tampering with a witness and conspiracy to commit arson. The defendant pleaded guilty under the Alford doctrine to arson in the third degree and criminal mischief in the first degree, and was ultimately sentenced to thirteen years in prison to be served at the Osborn Correctional Institution (Osborn). The defendant was incarcerated throughout the events that are the subject of this appeal.

Following his sentencing, the defendant filed a petition for sentence review. The defendant submitted to the sentence review division an unsigned letter purported to be on the stationery of his defense counsel, stating that his sentence was to be for a term of six years suspended after four years. After reviewing the letter, Shepack informed the sentence review division that he believed that the document was fraudulent. The defendant later stated that Shepack had gone “beyond the scope of his functions as a prosecutor” in communicating his belief to the sentence review division.

In 1996, Donald Anderson, an inmate at Osborn, reported to William Grady, the supervisor of an intelligence unit at Osborn, that the defendant had asked him if he knew of anyone who could set fire to the Litchfield County courthouse, and to a prosecutor’s house and car. Anderson’s report was eventually communicated to the state police major crime squad in Litchfield. Trooper Deborah Schutt was assigned to investigate the defendant. Schutt met with Anderson and asked that he wear a tape recorder. Schutt told Anderson that she would assign an undercover trooper, Clifford Labbe, Jr., to pose as “Cliff DeMarco,” a fictitious friend of Anderson with ties to the Mafia. Anderson then was to notify the defendant that he knew of someone willing to carry out his wishes. Timothy McIntosh, the administrative captain overseeing the prison facility, arranged for Labbe, posing as DeMarco, to be added to the defendant’s visiting list. Labbe visited the defendant on three occasions.

Taped recordings of the defendant’s conversations with Anderson indicate that the defendant wanted the courthouse burned down, and that he wanted “someone from the outside” to set fire to the courthouse. The defendant stated that he needed only three days notice to locate the necessary funds. The defendant further stated that he would have Mary Jane Prescott, his girlfriend, deliver payment. Finally, the defendant stated that he would obtain Shepack’s license plate number for use in locating Shepack’s home.

During Labbe’s first visit with the defendant on September 4, 1996, the defendant stated that he wanted Labbe to set fire to the courthouse and Shepack’s car and residence. The defendant told Labbe that Prescott had control of his money and that she needed a power of attorney to retrieve the money from a safety deposit box. Labbe told the defendant that he required $5000 in advance and $5000 upon completion of the task, provided the defendant with his pager number and suggested that Prescott meet him at the Danbury Fair Mall to facilitate payment.

Labbe met with the defendant for the second time on October 2, 1996. During the meeting, Labbe stated that Prescott had not contacted him. The defendant responded that Prescott had paged him several times, but the pager number was not working. The defendant further stated that he had not given Prescott a power of attorney to access the safe deposit box. Prescott apparently was having difficulties accessing the safe deposit box because she had no key, but the defendant told Labbe that the issue had been resolved. The conversation concluded with the defendant’s assuring Labbe that he would have his money in a few days and stating that he was trying to obtain Shepack’s address. The defendant then changed his instruction, stating that he wanted to pay Labbe all the money in advance. The defendant requested that, instead of burning Shepack’s property, he wanted Shepack’s house and car spray painted. Furthermore, Prescott contacted Labbe after the second visit and stated that “things hadn’t panned out yet and that [he] needed to contact” the defendant.

During Labbe’s third and final visit with the defendant on November 14, 1996, the defendant told Labbe to set fire to the courthouse, but stated that “he was having problems with a court injunction on his assets.” There was, in fact, no injunction in place and the defendant had access to $19,000. The defendant was concerned by rumors that Anderson was recording conversations and was troubled by Anderson’s early release.

During the trial, the state presented evidence as to the defendant’s available assets, including bank statements, information about a safe deposit box and information pertaining to the defendant’s investments. The documents indicated that the defendant had access to funds during the period in which his meetings with Labbe occurred. The documents also indicated that Prescott had a meeting scheduled with a locksmith on October 16, 1996, to have the safe deposit box lock drilled.

The jury heard recordings of conversations between the defendant and Prescott on August 25, September 1 and September 11, 1996. The transcript of a conversation between the defendant and Prescott on October 12, 1996, was admitted into evidence. In that conversation, the defendant instructed Prescott to page Labbe, whom he identified as an investigator he had hired, that she pretend that she had tried to contact him previously, and that she tell Labbe that “whatever you and [the defendant] discuss [ed] has not developed yet . . . [t]here [are] complications.” The conversations further indicated that the defendant told Prescott to contact Labbe and inform him that the plan could not go forward.

Correspondence seized included a note providing Labbe’s alias and pager number and a note stating, “Cliff [Labbe] said to call him when you get things all set.” A third note stated that “[o]f the things you and [the defendant] discussed, zero with a line thorough it, developed.”

McIntosh, acting as notary public for the prison facility, notarized two documents for the defendant. One document gave power of attorney to Prescott, and a second allowed Prescott access to a safe deposit box. One of the documents restricted Prescott’s authority to “open and enter [the defendant’s] box to remove two titles for two automobiles . . . copy them front and back, and place back into [the defendant’s] box the originals,” and that “this draft/document shall be solely permitted for this one transaction only.”

At the conclusion of the state’s case, the defendant filed a motion for judgment of acquittal, which was denied. The jury found the defendant guilty of criminal attempt to commit arson in the second degree. On May 14, 1998, the defendant filed a motion for judgment of acquittal, which also was denied. Thereafter, the defendant pleaded guilty on a part B information to the charge of being a persistent serious felony offender. Additional facts will be discussed as necessary where relevant to the issues in this case.

I

The defendant claims first that the trial court improperly denied his motion for judgment of acquittal because the evidence was insufficient to support the jury’s verdict of guilty of attempt to commit arson in the second degree. We disagree.

Specifically, the defendant claims that the evidence was insufficient to prove (1) that he had the requisite specific intent to have Labbe actually carry out the arson of the Litchfield courthouse and (2) that he committed a substantial step toward the commission of the crime. Both claims are without merit.

“When reviewing sufficiency of the evidence claims, we employ a two part analysis. First, we construe the evidence in the light most favorable to sustaining the verdict. . . . Second, we determine whether, from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt. ... In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . The issue is whether the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) State v. Walton, 34 Conn. App. 223, 229, 641 A.2d 391, cert. denied, 230 Conn. 902, 644 A.2d 916 (1994).

With respect to the defendant’s claim that the evidence was insufficient to establish specific intent, “[i]t is well established that the question of intent is purely a question of fact. . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged. . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person’s state of mind is usually proven by circumstantial evidence. . . . Intent may be and usually is inferred from conduct. . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.” (Internal quotation marks omitted.) State v. Smith, 46 Conn. App. 321, 326, 699 A.2d 262 (1997).

“While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. . . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt.” (Citation omitted; internal quotation marks omitted.) State v. Romero, 42 Conn. App. 555, 558, 681 A.2d 354, cert. denied, 239 Conn. 935, 684 A.2d 710 (1996).

To convict the defendant of attempt to commit arson in the second degree in violation of §§ 53a-112 (a) (2) and 53a-49 (a) (2), the state must prove beyond a reasonable doubt that the defendant acted with the specific intent to commit arson in the second degree, which, in turn, includes the intent to hire a person to cause a fire, and that the defendant took a substantial step in a course of conduct planned to culminate in his commission of the crime. “Intent may be inferred from the conduct of the accused and is a determination for the trier of fact. . . . That the evidence is circumstantial rather than direct does not diminish the force of that evidence. . . . The state must prove every essential element of the crime beyond a reasonable doubt and, while the jury may draw reasonable and logical inferences, it may not resort to speculation.” (Citations omitted; internal quotation marks omitted.) State v. Lavigne, 57 Conn. App. 463, 469, 749 A.2d 60 (2000).

A

The jury reasonably could have found that the defendant had the requisite specific intent to carry out the arson. The state offered recordings of the defendant’s conversation with Anderson evincing the defendant’s hostility toward Shepack and the Litchfield courthouse for his original thirteen year prison sentence. The state further offered recordings of the defendant articulating a plan to Anderson and Labbe to target the Litchfield courthouse and Shepack’s property. The recordings also indicated that Prescott would serve as a point of contact outside the walls of the prison and that she was capable of providing the funds for Labbe by means of a power of attorney executed by the defendant. Finally, the state offered documentary evidence seized from Prescott’s apartment that supported her involvement in the defendant’s affairs and her contact with a locksmith to access the safe deposit box. From the evidence presented and all the reasonable inferences that it yields, the jury reasonably could have concluded that the defendant possessed the requisite specific intent to carry out the arson.

B

The defendant next claims that the evidence is insufficient to establish that his conduct constituted a substantial step toward hiring Labbe to commit an arson. “The legislature has defined what it meant by a substantial step in [General Statutes] § 53a-49 (a). It must be part of a course of conduct that is planned to culminate in the crime. The action taken must embody the intended crime, rather than being merely accidental or inadvertent. The [c]onduct shall not be held to constitute a substantial step under subdivision (2) of subsection (a) . . . unless it is strongly corroborative of the actor’s criminal purpose. . . . General Statutes 53a-49 (b). [T]his standard properly directs attention to overt acts of the defendant which convincingly demonstrate a firm puipose to commit a crime. State v. Green, 194 Conn. 258, 277, 480 A.2d 526 (1984), cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Accordingly, the acts must be at least the start of a line of conduct which will lead naturally to the commission of a crime which appears to the [defendant] at least to be possible of commission by the means adopted.” (Emphasis in original; internal quotation marks omitted.) State v. Shinn, 47 Conn. App. 401, 406, 704 A.2d 816 (1997), cert. denied, 244 Conn. 913, 914, 713 A.2d 832, 833 (1998).

The arguments of both the state and the defendant focus on whether Labbe, Prescott or Anderson were “innocent agents” under § 53a-49 (b) (7). This subsection lists seven categories of conduct that, “if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law,” including the “[solicitation of] an innocent agent to engage in conduct constituting an element of the crime.” Because § 53a-49 is derived from § 5.01 of the American Law Institute’s Model Penal Code, the model code comments are persuasive. See State v. Wallace, 56 Conn. App. 730, 735 n.7, 745 A.2d 216, cert. denied, 253 Conn. 901, 753 A.2d 939 (2000). The comments state that “[s]ubsection (2) also provides that the specific list of factors that has just been discussed does not preclude the possibility of finding an attempt in other contexts.” American Law Institute, Model Penal Code and Commentaries (1985) part I, § 5.01, comment (6) (b) (viii), p. 347. The list therefore defines specific types of conduct that preclude a court from granting a directed verdict when that conduct is strongly corroborative of the actor’s criminal purpose. See id., p. 297.

The pertinent question, therefore, is whether the defendant’s actions equate to a substantial step toward hiring Labbe to commit an arson. We consider this question in the context of the circumstances as they appeared to the defendant at the time rather than how far the defendant ultimately was from hiring Labbe to carry out the arson. See General Statutes § 53a-49 (a).

Our Supreme Court has stated that the essential element of a hiring relationship is an “agreement to compensate the defendant for his services.” State v. McGann, 199 Conn. 163, 176, 506 A.2d 109 (1986). In interpreting the relevant section pertaining to hiring an agent to carry out a murder, “we are concerned principally with adopting a construction . . . that effectuates the legislative intention, not with the technical niceties of contract law.” Id., 178. Therefore, the mere fact that Labbe was not paid should not be dis-positive.

The defendant, relying on State v. Schleifer, 99 Conn. 432, 121 A. 805 (1923), claims that evidence that he solicited Labbe to set fire to a building cannot, as a matter of law, constitute a substantial step toward committing arson. The legislative history indicates that § 53a-112 was adopted to confront the problem of fires set to defraud insurance companies or those hiring persons to set such fires. See 19 H.R. Proc., Pt. 25, 1982 Sess., pp. 6195-96, remarks of Representative Alfred Onorato. In 1982, § 53a-112 was amended by No. 82-290 of the 1982 Public Acts (P.A. 82-290), which made it a crime to hire another person to set a fire. When the legislature amends the language of a statute, we presume that “it intended to change the meaning of the statute and to accomplish some purpose.” State v. Johnson, 227 Conn. 534, 543, 630 A.2d 1059 (1993). It is therefore unlikely that the standard for attempted arson would be governed by the preamendment case law, which concluded that “the solicitation of another to commit arson . . . upon the oiler of a bribe for so doing is a crime, by treating the offer of bribe as an act constituting an attempt. Neither the letter nor the bribe constitutes such an act of endeavor as to make the crime one of attempt.” State v. Schleifer, supra, 438. “[T]he mere offer of money, or solicitation, to commit arson is not the sort of act necessary to satisfy the definition.” Id.

It is further presumed that “[wjhen the Legislature acts in a particular area, it does so with knowledge of and regard to the prior state of the law, including relevant decisions [of the Appellate Court]. ... It is presumed to know the existing state of the case law in those areas in which it is legislating ... to be cognizant of judicial decisions relevant to the subject matter of a statute . . . and to know the state of existing relevant law when it enacts a statute.” (Citations omitted; internal quotation marks omitted.) State v. Dabkowski, 199 Conn. 193, 201, 506 A.2d 118 (1986). It is thus unlikely that the proscription of arson for “hire” under the amendment to § 53a-112 effected no corresponding change to the standard for attempted arson as stated in Schleifer.

The jury reasonably could have found that the defendant attempted to hire Labbe to commit arson on the Litchfield courthouse and Shepack’s house and car. Viewing the circumstances as they would have appeared at the time the defendant acted, the defendant offered to pay Labbe, a party apparently willing and able to carry out the procedure, $10,000. The defendant further offered to locate Shepack’s address. Finally, there is evidence that the defendant utilized his girlfriend to contact Labbe and further evidence that she took steps to access the safe deposit box by scheduling an appointment with a locksmith to drill the lock after she received the power of attorney. The only point of controversy appears to be that Labbe had not actually been paid. To constitute a substantial step, however, consummation of the deed is not required. Any other interpretation would impose a requirement of a more stringent standard of proof for attempt than is provided by § 53a-49.

The defendant further posits that if the evidence was sufficient to establish attempted arson, the trial court improperly found that the evidence was insufficient to establish that he had renounced the attempt. We disagree.

“There are two relevant statutory provisions defining the elements of renunciation. Section 53a-49 (c) provides in part: ‘When the actor’s conduct would otherwise constitute an attempt ... it shall be a defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.’ [General Statutes §] 53a-50 elaborates on the voluntariness requirement as follows: ‘For purposes of this part, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor’s course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct or to transfer the criminal effort to another but similar objective or victim.’ ” State v. Kelly, 23 Conn. App. 160, 165, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).

The jury reasonably could have determined that the defendant failed to continue on his course of criminal conduct because of the circumstances of Anderson’s early release and rumors that his conversations were being recorded. The defendant’s renunciation, therefore, was not voluntary under General Statutes §§ 53a-49 and 53a-50, and the jury reasonably could have rejected the defense. The trial court thus properly denied the defendant’s motion for judgment of acquittal.

II

The defendant next argues that the trial court improperly allowed the state to offer details of his prior arson conviction and other bad acts after ruling to exclude them. We are not persuaded.

Prior to trial, the defendant filed a motion in limine to prevent admission of evidence of the defendant’s criminal record and any charges pending at the time of the motion. The trial court ruled' that the prosecutor was authorized to present evidence pertaining to the fact that the defendant was convicted in 1992, the date of that conviction, the fact that Shepack was the prosecutor for that conviction and the sentence the defendant received from the conviction. The court further stated that “at this point” the underlying facts of the conviction were more prejudicial than probative. The trial court, however, denied the motion in limine.

The trial court subsequently amended its ruling several times. First, the court allowed the state to present evidence that “the defendant was convicted of the arson charge and not of a reckless burning charge, but at least at the initial stage, without indicating any of the underlying factual circumstances.” Next, the court permitted evidence that the original arson conviction involved a car fire, finding the specific facts not prejudicial. The court also allowed evidence pertaining to the defendant’s plea agreement. The court allowed the state to elicit testimony regarding the allegedly fraudulent letter as evidence of the defendant’s motive. The trial court also admitted a tape recording of the defendant complaining that he was “the very first in the state of Connecticut that ever received this type of sentence, thirteen years, for car burning.”

“It is well settled that evidence of prior misconduct is admissible for the limited purposes of showing intent, an element in the crime, identity, malice, motive or a system of criminal design. . . . The test is two-pronged. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of such evidence must outweigh the prejudicial effect .... The primary responsibility for conducting the prejudicial-probative balancing test rests with the trial court, and its conclusion will be disturbed only for a manifest abuse of discretion. ... We note that [bjecause of the difficulties inherent in this balancing process . . . every reasonable presumption should be given in favor of the trial court’s ruling. . . . Evidence of prior threats by a defendant directed to his victim has been held relevant to the issues of intent and motive.” (Citations omitted; internal quotation marks omitted.) State v. Cepeda, 51 Conn. App. 409, 430, 723 A.2d 331, cert. denied, 248 Conn. 912, 732 A.2d 180 (1999). However, “[w]here the prior crime is quite similar to the offense being tried, a high degree of prejudice is created and a strong showing of probative value would be necessary to warrant admissibility.” State v. Nardini, 187 Conn. 513, 522, 447 A.2d 396 (1982).

The evidence of prior misconduct admitted was relevant to the issues of intent and motive, which were central to this case. The state offered both the underlying facts of the arson conviction and the letter to the sentencing commission to establish the defendant’s hostility toward Shepack. In deciding whether to admit the two incidents on the issues of intent and motive, the trial court applied the balancing test of probative value as against the prejudicial effect of such evidence. See State v. Cepeda, supra, 51 Conn. App. 431. The trial court properly decided that evidence involving the conviction for arson and the letter to the sentencing division were relevant to the issues of motive and intent, and it reasonably could have concluded that the probative value of such evidence outweighed its prejudicial tendency. Accordingly, the trial court did not abuse its discretion in admitting that evidence.

Ill

The defendant claims next that the prosecutor’s attempt to solicit testimony from Shepack regarding the details of the defendant’s original charges after the trial court had initially ruled that such evidence was not admissible violated the defendant’s right to a fair trial. The defendant seeks review of his unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that the prosecutor’s actions do not constitute misconduct.

This court has declined to embrace a per se rule of prosecutorial misconduct when a prosecutor exceeds the bounds of a trial court’s order. See State v. Bonsu, 54 Conn. App. 229, 239, 734 A.2d 596, cert. denied, 251 Conn. 909, 739 A.2d 1249 (1999). Instead, to determine “whether prosecutorial misconduct was so serious as to amount to a denial of due process [and is thus reviewable under Golding], this court, in conformity with courts in other jurisdictions, has focused on several factors. Among them are [1] the extent to which the misconduct was invited by defense conduct or argument ... [2] the severity of the misconduct ... [3] the frequency of the misconduct ... [4] the centrality of the misconduct to the critical issues in the case . . . [5] the strength of the curative measures adopted . . . and [6] the strength of the state’s case.” (Citations omitted; internal quotation marks omitted.) State v. Aponte, 50 Conn. App. 114, 126, 718 A.2d 36 (1998), rev’d in part on other grounds, 249 Conn. 735, 738 A.2d 117 (1999).

As discussed in part II of this opinion, the evidentiary issues raised by the prosecutor with respect to the prior arson conviction and Shepack’s involvement with the letter to the sentencing division were central to proving the defendant’s intent to commit arson. Moreover, the trial court’s orders did not absolutely define the limits of the permissible evidence; instead, they appeared to provide working limitations subject to redefinition as the trial proceeded. In light of these considerations, we conclude that the defendant’s claim that the prosecutor violated the court’s order is not factually supported by the record. Because the defendant cannot satisfy the third Golding prong requiring him to establish that the alleged constitutional violation clearly exists and clearly deprived him of a fair trial, further review is unwarranted.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-112 (a) provides in relevant part: “A person is guilty of arson in the second degree when, with intent to destroy or damage a building ... (2) a fire or explosion was caused by an individual hired by such person to start such fire or cause such explosion.”

       “Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. ... A guilty plea under the Alford doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Citation omitted; internal quotation marks omitted.) State v. Jones, 55 Conn. App. 243, 244: 45 n.2, 739 A.2d 697 (1999), cert. denied, 253 Conn. 922, 754 A.2d 798 (2000).

       The dictionary definition of “hire” does not state that payment is required. Hire is defined as “to engage the personal services of for a set sum”; “to engage the temporary use of for a fixed sum”; “to grant the personal services of or temporary use of for a fixed sum”; “to get done for pay”; or “to take employment.” Merriam-Webster’s Collegiate Dictionary (10th Ed. 1993).

       The defendant also claimed that the trial court improperly instructed the jury that it could find the defendant guilty of criminal attempt to commit arson if it found that the defendant attempted to hire Labbe to set fire to the courthouse and Shepack’s residence. The trial court’s instruction challenged by the defendant stated: “The attempt to hire someone to destroy or damage a building by fire or explosion might,not have been completed, but the defendant’s conduct must be strongly corroborative of his criminal intent. Preparation to commit a crime may constitute a criminal attempt if that preparation is a substantial step in a course of conduct leading naturally to the commission of the crime.” The defendant’s improper jury instruction claim is based, as was partially his insufficiency of evidence claim, on his belief that, under Schleifer, soliciting somebody to set a fire cannot, as a matter of law, constitute a substantial step toward the commission of arson. Because we conclude that Schleifer has been legislatively overruled by P.A. 82-290 to the extent that it held that solicitation of another to set a fire was insufficient to establish the crime of attempt to commit arson, we reject the defendant’s improper jury instruction claim.

       “[A] defendant can prevail onaclaim of constitutional errornotpreserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: DUPONT, J.

text:
    MARY GAY ET AL. v. ZONING BOARD OF APPEALS OF THE TOWN OF WESTPORT
    (AC 19377)
    Lavery, C. J., and Spear and Dupont, Js.
    Argued March 29
    officially released August 15, 2000

      Ira W. Bloom, with whom was Michael S. Toma, for the appellant (defendant).

      Lawrence P. Weisman, for the appellees (plaintiffs).
   Opinion

DUPONT, J.

The defendant, the zoning board of appeals of the town of Westport (board), appeals from the trial court’s judgment sustaining the plaintiffs’ appeal from the board’s denial of their application for the removal of a condition prohibiting construction on a certain lot owned by the plaintiffs. The condition had been imposed by the board in 1966 with the agreement of a predecessor in title of the plaintiffs in connection with the predecessor’s application for a variance on other, noncontiguous land that he owned. The primary issue of this case is whether the condition was void ab initio. We conclude that the condition was void and affirm the judgment of the trial court.

The following facts are not in dispute. In 1950, Emanuel Massiello, a land developer, filed and recorded with the town of Westport an approved subdivision plan consisting of twelve lots, each approximately one acre in size. Lot L, the lot owned by the plaintiffs and at issue in this appeal, is a 1.08 acre parcel located within this subdivision. At the time, the subdivision was in an AA zoning district, which required a minimum building lot of one acre. In 1953, the zone in which the subdivision was located changed from an AA district to an AAA district, which required each building lot to have a minimum area of two acres.

In 1956, a lot merger provision was added to the zoning regulations, requiring all nonconforming adjacent lots in a subdivision with common ownership to merge into one lot. Lot L was unaffected by this lot merger provision and did not merge with any other lot in the subdivision. In 1966, Massiello went before the board and requested a variance for a 3.36 acre parcel in the subdivision that had been merged previously. He wanted to divide the parcel into two lots of 1.51 and 1.85 acres. The board approved the application but, in doing so, conditioned its approval on several requirements, one being that “Lot ‘L’ shall never be used as a building site.” Lot L was not a part of the 3.36 acres involved in the application for a variance, nor was it contiguous to that acreage, but instead, was a separate lot also owned by Massiello. Massiello agreed to the conditions and the variance was granted.

Following the board’s approval of Massiello’s variance, the board approved variances for virtually all of the other lots in the subdivision, the result of which was that, almost without exception, all of the lots had less than the two acre minimum required by the AAA zone district. In its memorandum of decision, the trial court found that “the record demonstrates an utter lack of conformity within the subdivision with the AAA zone district.”

The plaintiffs, as the current owners of lot L, claim that the condition imposed by the board and agreed to by a predecessor in title was illegally imposed and, therefore, should be removed. Thus, on June 27, 1997, the plaintiffs applied to the board for the removal of the restriction on lot L that prevented it from being used as a building site and for a variance permitting them to build on the lot. On November 12, 1997, the board denied the plaintiffs’ application, stating that “[t]he variance was denied because no hardship was proven and the board felt there was no reason to overturn the previous condition imposed.” The plaintiffs appealed to the trial court from the board’s denial, alleging that the condition attached to the 1966 variance was illegally and improperly imposed. The plaintiffs alleged that the board improperly acted with respect to lot L because it had been imposed “as a condition of the granting of a variance to an altogether different lot. ”

The court sustained the plaintiffs’ appeal and struck down the 1966 restriction, holding that the condition was “unreasonable” and that the board had “abused its discretion.” The court held that the board had no jurisdiction or authority to condition a variance on a prohibition against an unrelated lot, where the condition was not “necessary for the viability of the variance.” The court noted that “the fact that the board approved the variance applications with a condition attached to lot L, which was not even the subject of the variance applications at all, raises serious questions for the court. In fact, the court could not find even a single instance in which a zoning board of appeals placed a condition on a parcel of property that was not also the subject of the variance application.”

The court also rejected the defendant’s claim that it was too late for the plaintiffs to challenge the board’s 1966 actions. The court held that the plaintiffs’ challenge was “a challenge to the board’s power to act and may be brought at this time. See Moscowitz v. Planning & Zoning Commission, 16 Conn. App. 303, 313, 547 A.2d 569 (1988).” The court further held that General Statutes § 8-26a (b), which provides that lots in an approved subdivision may not be required to conform to subsequent changes in zoning regulations, applies to the plaintiffs’ case and, thus, “the plaintiffs were not required to apply for a variance ... in order to construct a single family residence on lot L.”

I

We first address the defendant’s claim that the imposition of the condition was a valid exercise of its powers. As a threshold matter, we note that this case is not about whether the plaintiffs could build a one-family dwelling on a lot less than two acres in size if there were no condition; see General Statutes § 8-26a (b); but about whether the condition imposed in 1966 is valid, thereby prohibiting any building at all on the lot. Neither party on appeal argues the issue of whether a variance to build should have been granted if the condition was valid. We also note that this case is not about the distinction between cases involving special permits or exceptions as opposed to variances; Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 232 A.2d 916 (1967); because were it not for the condition, the building on lot L would be a permitted use and, as such, would not require a variance. The variance with which this case is concerned is the one granted in 1966 to which the condition not to build on lot L was attached.

“Local zoning boards are vested with a liberal discretion. ... A trial court must, however, review the decision of a zoning board of appeals to determine if the board acted arbitrarily, illegally or unreasonably.” (Citation omitted.) Wnuk v. Zoning Board of Appeals, 225 Conn. 691, 695-96, 626 A.2d 698 (1993). Additionally, our review of conclusions of law is plenary, and we must decide whether the conclusions are legally and logically correct, and supported by the facts in the record. State v. Velasco, 248 Conn. 183, 189, 728 A.2d 493 (1999).

It is undisputed that “[a] zoning board of appeals may, without express authorization, attach reasonable conditions to the grant of a variance.” (Emphasis added.) Burlington v. Jencik, 168 Conn. 506, 509, 362 A.2d 1338 (1975). Reasonable conditions attached to a variance are those conditions that are in general harmony with the purposes and intent of the zoning regulations. Id.; Gangemi v. Zoning Board of Appeals, 54 Conn. App. 559, 571, 736 A.2d 167, cert. granted on other grounds, 251 Conn. 911, 739 A.2d 1248 (1999). If conditions attached to the granting of a variance, however, are outside the authority of the zoning board, the action will not be sustained. Bora v. Zoning Board of Appeals, 161 Conn. 297, 302, 288 A.2d 89 (1971).

In its memorandum of decision, the court, quoting Burlington v. Jencik, supra, 168 Conn. 510, aptly noted that a variance and its attached conditions “ ‘are inextricably linked [when] the viability of the variance [is] contingent upon the satisfaction of the conditions.” (Emphasis in original.) Given this standard, the court, examined the record and found no evidence that the viability of the variances granted to Massiello in 1966 were dependent on the satisfaction of the condition imposed on lot L. Neither we nor the trial court could find a single case approving a condition imposed by a zoning board of appeals that was not the subject of a variance or special permit application.

It is instructive to review briefly some appellate decisions relating to conditions imposed by zoning authorities. It, is a valid condition on the granting of an application to erect certain structures for a wastewater treatment system to require the applicant to submit a plan to eliminate future sludge production and to remove sludge. Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 616 A.2d 793 (1992). In Upjohn Co., the condition was related to the application, and the promisor of the condition was the same entity that later sought to attack it. A condition requiring the demolition of one tower on the granting of a spécial exception to erect a replacement tower is valid because there is a substantial relationship between the request to build a new tower and the demolition of the existing tower. Farmington v. Viacom Broadcasting, Inc., 10 Conn. App. 190, 522 A.2d 318, cert. denied, 203 Conn. 808, 525 A.2d 523 (1987).

In those cases deciding that a condition is invalid, the universal thread, as is true in cases upholding the validity of the condition, rests on the closeness of the relationship of the condition to the action sought from the zoning entity and whether the entity had the authority to require the condition. A condition is void if it requires a zoning entity to deny a future application even if the future application fully complies with zoning; Moscowitz v. Planning & Zoning Commission, supra, 16 Conn. App. 311-12; or if the condition is impossible to satisfy; Vaszauskas v. Zoning Board of Appeals, 215 Conn. 58, 65, 574 A.2d 212 (1990); or if the zoning entity exercises a power not held by it but by another governmental entity; Bora v. Zoning Board of Appeals, supra, 161 Conn. 302; see also Parish of St. Andrew’s Church v. Zoning Board of Appeals, supra, 155 Conn. 350; or if the condition bears no relationship to the action sought from the zoning authority and is not an essential or integral part of it. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 18-19, 291 A.2d 208 (1971).

On the basis of existing case law and applying the principles of the cases cited, we conclude that the condition that lot L never be used as a building lot, attached to the grant of the variance for an unconnected property, was unreasonable, beyond the authority of the board and, thus, void ab initio. When a condition imposed by a board is unreasonable and beyond the authority of the board, “it may be revoked, set aside and declared to be void and of no force.” (Internal quotation marks omitted.) Vaszauskas v. Zoning Board of Appeals, supra, 215 Conn. 66.

II

The defendant also claims that it is too late for the plaintiffs to challenge the imposition of the 1966 condition either because the plaintiffs have waived their right to do so or because the “finality of zoning decisions” concept, as discussed in Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 96, prevents the trial court from overturning a 1966 zoning decision.

“We have frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test. The only relevant exception to this rule is where the administrative action is void.” (Internal quotation marks omitted.) Moscowitz v. Planning & Zoning Commission, supra, 16 Conn. App. 313. In Upjohn Co. v. Zoning Board of Appeals, supra, 224 Conn. 100-102, the court held that a property owner could not accept the benefits of a permit and a condition attached to it for three years and then attack the condition; see also Spectrum of Connecticut, Inc. v. Planning & Zoning Commission, 13 Conn. App. 159, 161-62, 535 A.2d 382 (1988); but acknowledged an exception to that general rule. The exception is that a collateral attack on a previously unchallenged condition will be permitted where the “condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it ... .” Upjohn Co. v. Zoning Board of Appeals, supra, 105. The case before us falls into this exception set forth in Upjohn Co.

We have already concluded that the condition imposed by the board on a parcel that was not the subject of the variance application before it was void ab initio. The action of the board in imposing such a condition was ultra vires and, as such, there could not have been any justified reliance on it. “Where the challenge raised is to the power of the agency to act, the failure to appeal immediately does not deprive the challenger of his right to bring the claim at a later date.” Moscowitz v. Planning & Zoning Commission, supra, 16 Conn. App. 313.

We conclude, therefore, that the action of the board in imposing a condition on a parcel unconnected to the property for which the variances were sought was ultra vires and the condition void ab initio. The failure of the plaintiffs’ predecessors to appeal directly from the board’s action does not bar the plaintiffs now from challenging the condition.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs are Mary Gay and Florence O’Brien, owners of the property at issue in this case.

       Pursuant to General Statutes §§ 8-8 (o) and 8-9, this court granted the defendant’s petition for certification to appeal.

       The board specifically stated in its decision that “Emanuel Massiello . . . has agreed to a condition and restriction prohibiting any construction on lot ‘L’ and intends to develop the remainder of his property in a manner which would be consistent with the spirit and intent of the Westport zoning regulations.”

         The plaintiffs acquired lot L by way of inheritance from their father, who had bought the property fropi Massiello. It is not disputed by the parties that the plaintiffs’ father had at least constructive notice of the condition on lot L at the time of his purchase.

       General Statutes § 8-26a. (b) provides: “Notwithstanding the provisions of any general or special act or local ordinance, when a change is adopted in the zoning regulations or boundaries of zoning districts of any town, city or borough, no lot or lots shown on a subdivision plan for residential property which has been approved, prior to the effective date of such change, by the planning commission of such town, city or borough, or other body exercising the powers of such commission, and filed or recorded with the town clerk, shall be required to conform to such change.”
      The defendant does not, attack the validity of the application of § 8-26a (b) to the plaintiffs’ lot t/the condition prohibiting its use as a building lot site were void.

       The plaintiffs’ complaint alleged that their application for a variance should have been granted because all “other lots in the immediate area and in the subdivision of which the subject lot forms a part were at the time of their development undersized and the subject of similar variance requests.”

       Emanuel Massiello agreed to the condition imposed in 1966 and obviously, therefore, took no appeal from the variance he obtained or from the condition.


author: PELLEGRINO, J.

text:
    IN RE ALEX M.

    (AC 19901)
    Foti, Landau, Schaller, Zarella and Pellegrino, Js.
    Considered May 10
    officially released August 15, 2000

      Stephen G. Vitelli, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, in support of the motion.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Opinion

PELLEGRINO, J.

This is a termination of parental rights case in which the commissioner of children and families (commissioner), relying on In re Jessica M., 250 Conn. 747, 738 A.2d 1087 (1999), has moved to vacate the trial court’s refusal to consider the merits of the commissioner’s motion to extend commitment. We deny the motion to vacate and dismiss the commissioner’s appeal as moot.

On August 4, 1998, the minor child, Alex M., was adjudicated neglected and was committed to the custody of the commissioner for a period not to exceed one year. The original commitment indicated that a request for an extension of the child’s commitment was to be filed within nine months of the adjudication, that is, by May 4,1999. The commissioner, however, did not file her motion for extension until July 20, 1999.

On August 3, 1999, the day before the commitment was to expire, the trial court held a hearing to consider the commissioner’s motion for extension. The court found, however, that it could not schedule a contested hearing on the matter prior to the expiration of the commitment on August 4, 1999. Specifically, the trial court stated that “there wasn’t sufficient notice to the court to provide for a hearing before this date. It’s one day before the commitment expires. I’m the sole judge here. This is a short calendar day. It’s ten of three in the afternoon. There’s no possible way that a hearing can be conducted before the expiration of this commitment.” The court, therefore, declined to hear arguments on the merits of the motion for extension of commitment.

On August 4,1999, the court signed an ex parte order of temporary custody, and the child remained in his foster home. Further hearings were held on the order of temporary custody in Middletown at the Child Protection Session on August 19 and 20, 1999. On August 20, 1999, the court vacated the order of temporary custody subject to the mother’s compliance with specific steps.

The commissioner filed a timely appeal from the trial court’s August 3, 1999 refusal to consider the merits of the motion to extend the commitment. Counsel for the minor child also filed a timely appeal, challenging both the court’s August 3, 1999 refusal and its August 20, 1999 decision vacating the order of temporary custody. Subsequent to the filing of these appeals, the court terminated the parental rights of both parents, and this court dismissed as untimely the respondent mother’s appeal from the termination order.

In light of the termination order, the appeals filed both by the commissioner and by counsel for the minor child were placed on this court’s own motion calendar for dismissal as moot. At the hearing in this court, the commissioner conceded that the appeals were moot, as the respondent mother had neither filed with this court a motion to reconsider, nor petitioned for certification to appeal to the Supreme Court. The commissioner orally requested, however, that before dismissing the appeals as moot, this court first vacate the trial court’s refusal to consider the merits of the commissioner’s motion to extend the commitment. This court marked the matter over to give the commissioner an opportunity to file a written motion to vacate. Thereafter, the commissioner filed a motion to vacate, to which no objection was filed.

The commissioner relies on In re Jessica M., supra, 250 Conn. 747, in support of her motion. In that case, the commissioner appealed from the trial court’s dismissal of a petition for termination of parental rights, which order was affirmed by this court. Our Supreme Court granted certification, limited to the issue of whether this court properly affirmed the trial court’s judgment that the respondents’ parental rights could not be terminated on the grounds of (1) failure to achieve personal rehabilitation or (2) acts of parental commission or omission that denied the child necessary care, guidance or control. While the appeal was pending in the Supreme Court, the commissioner filed a second petition for termination, which the trial court granted. The respondent mother did not appeal from the termination order, and the respondent father voluntarily relinquished his parental rights prior to the trial on the second petition. The commissioner, therefore, moved to vacate the judgments of the Appellate Court and the trial court with respect to the first petition, claiming that the appeal had become moot and “the issues decided by those courts [were not] subject to review by the Supreme Court.” Id., 749. The Supreme Court granted the motion to vacate. Id.

Here, the commissioner seeks to vacate the trial court’s refusal to consider the merits of the commissioner’s motion to extend the commitment. According to the commissioner, the court refused to consider the merits of the motion because it found that the commissioner failed, under General Statutes § 46b-129 (k) (l), to file the motion more than sixty days before the commitment period expired. The commissioner, however, has misinterpreted the court’s refusal to consider the merits of the motion. When considering the timeliness of the motion for extension, the court indicated that by filing the motion to extend on July 20, 1999, when the commitment was due to expire on August 4, 1999, and allowing the matter to be calendared for August 3, 1999, the commissioner did not give the court enough time to consider the extension and to hear evidence from all parties. The court therefore found, as a practical matter, that it could not properly and fairly consider the motion. It did not find, as the commissioner suggests, that it was prevented from hearing the motion under § 46b-129 (k) (1) because the commissioner’s motion was untimely under that section. Nevertheless, the commissioner seeks to vacate the court’s refusal to consider the merits of the motion to extend the commitment.

Vacatur is “commonly utilized ... to prevent a judgment, unreviewable because of mootness, from spawning any legal consequences.” United States v. Munsingwear, Inc., 340 U.S. 36, 41, 71 S. Ct. 104, 95 L. Ed. 36 (1950). Unlike In re Jessica M., in which both the trial court and this court issued an opinion on the merits of the case, finding that the respondents’ parental rights could not be terminated on the grounds of (1) failure to achieve personal rehabilitation or (2) acts of parental commission or omission that denied the child necessary care, guidance or control, the present case does not involve an appeal from a judgment that is likely to spawn legal consequences. Rather, the appeal here concerns the trial court’s declining to hear arguments on the commissioner’s motion for extension of commitment. The trial court, therefore, has not addressed the merits of the commissioner’s motion. Accordingly, if we were to vacate the trial court’s refusal to act on the commissioner’s motion to extend commitment, the trial court would then be put in the position of having to rule on the merits of the commissioner’s motion for extension. Any decision rendered by the trial court on the commissioner’s motion, however, would have no practical impact on the parties, as the parental rights in this case already have been terminated.

The commissioner’s motion to vacate is denied and the commissioner’s appeal is dismissed as moot.

In this opinion the other judges concurred.

       On that same date, a judgment of default entered against the respondent father for his failure to appear.

       We need not reach the question of whether the appeal was taken from a final judgment because of our conclusion that the appeal is moot.

       The commissioner filed a petition for termination of parental rights on April 20, 1999.

       General Statutes § 46b-129 (k) (1) provides that “[t]en months after the adjudication of neglect of the child or youth or twelve months after the vesting of temporary care and custody . . . whichever is earlier, the commissioner shall file a motion for review of a permanency plan and to extend or revoke the commitment. . . .”

       A decision with such limited precedential value would be unlikely to spawn any legal consequences.


text:
    STATE OF CONNECTICUT v. ROBERT MADAGOSKI
    (AC 18789)
    Landau, SchaHer and Spear, Js.

      Argued April 28
    officially released August 15, 2000

      Francis L. O’Reilly, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and C. RobertSatti, Jr., assistant state’s attorney, for the appellee (state).
   Opinion

LANDAU, J.

The defendant, Robert Madagoski, appeals from the judgment of conviction, rendered after a jury trial, of one count of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-59 (a) (1), one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (2), one count of assault on a peace officer in violation of General Statutes § 53a-167c (a) (1) and one count of larceny in the second degree in violation of General Statutes § 53a-123 (a) (1). The defendant was sentenced to an effective term of forty-five years incarceration. He claims that the court improperly (1) failed to grant his motion for a judgment of acquittal on the count of attempt to commit assault in the first degree, (2) charged the jury on reasonable doubt and thus violated his federal and state constitutional rights to due process and a fair trial, (3) exercised its discretion in denying his motion for a bill of particulars and (4) excluded certain evidence and thus denied him his constitutional right of confrontation. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On February 11, 1997, Sergeant Thomas W. Guy-ette, a twenty-two year veteran of the state police who was assigned to the Connecticut auto theft task force (task force), was in Bridgeport to attend a meeting with chiefs of police. Prior to the meeting, Guyette dispatched the members of his task force group to patrol the streets of Bridgeport in search of motor vehicles that had been reported stolen within the last twenty-four hours. At approximately 11 a.m., while he was in the meeting, Guyette was contacted by John Pribesh, a Bridgeport police department detective, who reported that three stolen vehicles had been located in the vicinity of Anson and North Main Streets.

Guyette, who was dressed in a business suit, met with members of the task force at the intersection of Anson and Salem Streets, and dispatched the officers in teams of two throughout the area. At about 4:30 p.m., Pribesh informed Guyette that he was following a stolen van on Salem Street and that he thought that the driver knew he was a police officer. Guyette ordered Leonard Schroeder, a Fairfield police department detective, to help him and Pribesh box in the van at the intersection of Salem and Main Streets. Guyette and Schroeder blocked the intersection.

Before he got out of his vehicle, Guyette placed his police badge on the breast pocket of his coat and called the Bridgeport police department for help. When he got out of his vehicle, Guyette ran toward the van shouting, “Police, stop!” The defendant, the van’s sole occupant, moved the van toward Guyette and struck him on the left side. Guyette jumped over the hood of the van and landed between Schroeder’s vehicle and the van. The van struck Schroeder’s vehicle, and Guyette grabbed the door handle of the van with his left hand and grabbed his weapon with his right hand. Guyette pointed his weapon at the driver and yelled, “Police, give it up!” He had no intention of shooting the driver; his intent was to stop the vehicle. The van suddenly moved forward, twisting Guyette’s leg. Guyette’s weapon discharged, shattering the window on the driver’s side. As the vehicle accelerated, Guyette was dragged by it and, had he not let go, he would have struck a parked car.

The defendant drove away and was not apprehended until March 7, 1997. At that time, his jacket, which had a bullet hole under the left sleeve and to the rear, was seized. A spent bullet seized from the defendant’s trouser pocket was determined to be the bullet that was fired from Guyette’s weapon. Additional facts will be discussed as necessary.

I

The defendant’s first claim is that the court improperly failed to grant his motion for a judgment of acquittal on the count of attempt to commit assault in the first degree in violation of §§ 53a-49 and 53a-59 (a) (l) because the state failed to establish beyond a reasonable doubt that he intentionally sought to cause serious physical injury to Guyette. In essence, the defendant claims that there was insufficient evidence to convict him. We disagree.

The standards by which we review claims of insufficient evidence are well established. “When reviewing a sufficiency of the evidence claim, our courts apply a two-prong test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Perry, 48 Conn. App. 193, 196, 709 A.2d 564, cert. denied, 244 Conn. 931, 711 A.2d 729 (1998).

“It is within the province of the jury to draw reasonable and logical inferences from the facts proven. . . . The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. . . . We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. ... It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ... In doing so, we keep in mind that [w]e have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Radzvilowicz, 47 Conn. App. 1, 17-18, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

“Intent is generally proven by circumstantial evidence ‘because direct evidence of the accused’s state of mind is rarely available.’ State v. Greenfield, [228 Conn. 62, 77, 634 A.2d 879 (1993).] Therefore, intent is often inferred from conduct; id., 76; and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). “It is axiomatic that a factfinder may infer an intent to cause serious physical injury from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading up to and immediately following the incident.” (Internal quotation marks omitted.) State v. Commerford, 30 Conn. App. 26, 34, 618 A.2d 574, cert. denied, 225 Conn. 903, 621 A.2d 285 (1993).

The substance of the defendant’s argument is that he could not be convicted of attempt to commit assault in the first degree because Guyette did not suffer a serious physical injury. The state did not charge the defendant with causing Guyette serious physical injury, but rather, charged him with the attempt to cause such injury. The issue for the jury was whether the defendant attempted to inflict a serious physical injury. On the basis of our review of the record, we conclude that the jury could have found that the attempted assault occurred when the defendant drove the van at Guyette and attempted to run him over, when he dragged Guy-ette through the intersection or when he drove toward the parked car while Guyette was holding onto the handle of the driver’s door. Driving the van directly at Guyette would have caused serious physical injury if Guyette had not been able to jump on the hood of the van to avoid being sandwiched between it and a police vehicle. .Guyette also rolled away from the van when the defendant attempted to drive the van into a parked car. The defendant cannot benefit from Guyette’s own actions in minimizing his injuries.

“We afford great deference to findings of fact consistent with guilt unless they are improbable and unconvincing.” State v. Wolff, 29 Conn. App. 524, 529, 616 A.2d 1143 (1992). We conclude that after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

II

In his second claim, the defendant asserts that the court improperly instructed the jury on reasonable doubt when it stated: “While the state of Connecticut does not desire the conviction of any innocent person, also it does not wish to have a guilty person acquitted. It is the sworn duty of the juiy, if and when the evidence presented overcomes the presumption of innocence and proves the accused guilty beyond a reasonable doubt, to enforce the law and render a verdict of guilty.” In support of his claim, the defendant cites United States v. Doyle, 130 F.3d 523, 533 (2d Cir. 1997), in which the United States Court of Appeals for the Second Circuit held that an instruction stating that “you must keep in mind that those mies of law are designed to protect the innocent and not the guilty” diluted the presumption of innocence and reasonable doubt standard.

The state maintains that our Supreme Court in State v. Schiappa, 248 Conn. 132, 167-77, 728 A.2d 466 (en banc), cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999), and State v. Delvalle, 250 Conn. 466, 470-73, 736 A.2d 125 (1999), and this court in State v. Ryan, 53 Conn. App. 606, 610-11, 733 A.2d 273 (1999), held that the language found offensive in Doyle did not dilute the state’s burden of proof if, when read in conjunction with the charge as a whole, the jury could not be misled. See State v. Delvalle, supra, 470-72; State v. Schiappa, supra, 172-73. Indeed, in the sentence after the one the defendant finds objectionable, the court told the jury that the state must prove its case beyond a reasonable doubt.

The defendant attempts to distinguish Schiappa and Delvalle, in which the claims were unpreserved, from the situation in this case in which counsel made a timely objection and preserved his claim for appellate review. We addressed this argument in Ryan. “The defendant attempts to distinguish Schiappa on the ground that in the present case, unlike in Schiappa, the defendant preserved his claim and, therefore, need not rely on State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We, however, are not persuaded because the standard for review under Golding of an unpreserved claim is the same as the standard of review of a preserved constitutional claim. State v. Schiappa, supra, 248 Conn. 175 n.46.” State v. Ryan, supra, 53 Conn. App. 611 n.3. Although the defendant asks us to revisit this question, we decline the invitation because he has failed to give us any compelling reason to do so. See Kluttz v. Howard, 228 Conn. 401, 406, 636 A.2d 816 . (1994). In the case before us, when the challenged language is read in conjunction with the rest of the charge, particularly the court’s statement about the presumption of innocence and reasonable doubt, it is clear that the jury was not misled.

Ill

In a third claim, the defendant maintains that the denial of his motion for a bill of particulars was so prejudicial as to require a new trial. The defendant was in possession of the state’s disclosure at the time the motion was argued. The disclosure stated that the defendant drove the van at Guyette, that Guyette hung onto the van, and then fell off and injured his leg. The defendant requested, as to the count of attempt to commit assault, specificity as to what conduct, as outlined in the disclosure, created the risk of death and the intent to cause serious injury. As to the assault count, the defendant asked whether it was the same conduct the state would use to prove the attempt to commit assault count. The court ruled that the defendant’s request was evidentiary and therefore beyond the scope of a bill of particulars.

“[T]he denial of a motion for a bill of particulars is within the sound discretion of the trial court and will be overturned only upon a clear showing of prejudice to the defendant. . . . State v. Spigarolo, [210 Conn. 359, 385, 556 A.2d 112, cert. denied, 493 U.S. 933, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989)]; State v. Laracuente, [205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988)]. A defendant can gain nothing from [the claim that the pleadings are insufficient] without showing that he was in fact prejudiced in his defense on the merits and that substantial injustice was done to him because of the language of the information. State v. Rafanello, 151 Conn. 453, 457, 199 A.2d 13 (1964) .... State v. Spigarolo, supra, 382. . . . State v. Kyles, 221 Conn. 643, [653], 607 A.2d 355 (1992).” (Internal quotation marks omitted.) State v. McDougal, 241 Conn. 502, 521-22, 699 A.2d 872 (1997).

The defendant claims that he was prejudiced by the court’s refusal to order the state to specify the manner in which he allegedly committed the crime of attempt to commit assault in the first degree. It is undisputed, however, that at the time of the hearing on the motion, the defendant had access to the state’s disclosure and therefore was aware of the acts on which the state would proceed. “[T]his court has on numerous occasions adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged. See, e.g., State v. Frazier, [194 Conn. 233, 237, 478 A.2d 1013 (1984)] (defendant sufficiently apprised where he had access to state’s file, police reports and demonstrative evidence); State v. Beaulieu, 164 Conn. 620, 626, 325 A.2d 263 (1973) (information supplied by another count, state’s attorney and court); see also State v. Moffett, 38 Conn. Sup. 301, 310, 444 A.2d 239 (1981) (defendant’s access to prosecution file).” State v. Spigarolo, supra, 210 Conn. 384.

Because the defendant here had access to the data in the disclosure and the long form information, he knew the nature of the charges against him. Under the circumstances, we cannot conclude that the court abused its discretion to the prejudice of the defendant.

IV

The defendant’s final claim is that the court improperly denied him his constitutional right to confront his accusers when it precluded him from asking Guyette on cross-examination about whether he was the subject of a state police internal affairs investigation concerning the firing of his weapon. The defendant claims that the court’s ruling precluded him from eliciting testimony that could have impeached Guyette’s credibility. We disagree.

“It is a fundamental rule of appellate procedure in the review of evidential rulings, whether resulting in the admission or exclusion of evidence, that an appellant has the burden of establishing that there has been an erroneous ruling which was probably harmful to him. Casalo v. Claro, 147 Conn. 625, 630, 165 A.2d 153 (1960); State v. Kwaak, 21 Conn. App. 138, 150-51, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990).” (Internal quotation marks omitted.) State v. Suckley, 26 Conn. App. 65, 73, 597 A.2d 1285, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991). The court’s rulings “will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Rivera, 40 Conn. App. 318, 324, 671 A.2d 371 (1996).

On cross-examination of Guyette, the defendant asked whether a state police internal affairs investigation had looked into the propriety of Guyette’s discharging of his weapon and also whether there had been any suspensions, demotions or terminations as a result of Guyette’s firing his weapon. The court sustained the state’s objections. Thereafter, the defendant asked the court to review in camera Guyette’s personnel file, which the court did and found that there was nothing of relevance in it. The defendant did not object to the court’s ruling. Defense counsel asked for a continuance to examine the internal investigation report and to call additional witnesses, if necessary. The court granted the request. The following day, defense counsel had the internal investigation report marked for identification but did nothing more with it.

On appeal, the defendant claims that his questions concerning the internal investigation and demotions, terminations and suspensions went to Guyette’s motive, interest and bias in testifying. The flaw in the defendant’s argument is that he never established a foundation for either of the questions.

While cross-examination to elicit facts tending to show motive, interest and bias is a matter of right and may not be unduly restricted; State v. Gould, 241 Conn. 1, 16, 695 A.2d 1022 (1997); “[t]he [confrontation [cjlause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defendant might wish.” (Emphasis in original; internal quotation marks omitted.) State v. Andrews, 248 Conn. 1, 11, 726 A.2d 104 (1999). It is axiomatic that the defendant bears the burden of establishing the relevance of the proffered testimony and that unless a proper foundation is established, the evidence is not relevant.

“ ‘[E]very evidentiary ruling which denies a defendant a line of inquiry to which he thinks he is entitled is not constitutional error. . . . The defendant’s rights to confront and cross-examine witnesses and to present a defense do not give him the right to have admitted any evidence he chooses. ... In the exercise of his rights, the defendant, as well as the state, must comply with the established rules of evidence and procedure. . . .’ State v. Boles, 223 Conn. 535, 550, 613 A.2d 770 (1992). Excluding certain evidence does not vitiate the defendant’s constitutional right to present a defense.” State v. Smith, 35 Conn. App. 51, 57, 644 A.2d 923 (1994). On the basis of our review of the record, we conclude that the court did not abuse its discretion or cause the defendant substantial harm or prejudice in restricting his cross-examination of Guyette.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found to be a persistent dangerous felony offender and was sentenced pursuant to General Statutes § 53a-40 (b) and (g).

       The task force was comprised of state and local police officers.

       Members of the task force were operating a variety of unmarked motor vehicles.

       Guyette placed his vehicle at an angle in front of the van to prevent it from turning onto Main Street, and Schroeder put his vehicle at an angle in front of the van to prevent it from going straight or turning left. Pribesh was behind the van.

       Guyette and Schroeder made in-court identifications of the defendant as the driver of the van.

       General Statutes § 53a-49 (a) provides: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be; or (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument

       “ ‘Serious physical injury’ means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ . . . .” General Statutes § 53a-3 (4).

       The defendant also makes a claim under article first, § 8 of the constitution of Connecticut. We decline to review this claim because he has failed to provide an independent analysis of this state constitutional claim. See State v. Faust, 237 Conn. 454, 465 n.10, 678 A.2d 910 (1996).

       The defendant limits this claim to the first two counts with which he was charged, attempt to commit assault in the first degree and assault in the second degree.


text:
    STATE OF CONNECTICUT v. DARIUS MILLER
    (AC 19027)
    Landau, Mihalakos and Pellegrino, Js.

      Argued May 3
    officially released August 15, 2000

      Jerald, S. Barber, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, supervisory assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Joseph T. Corradino, assistant state’s attorney, for the appellee (state).
   Opinion

PELLEGRINO, J.

The defendant, Darius Miller, appeals from judgment of conviction, rendered following a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4) and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 and 53a-134 (a) (4). The defendant claims that the trial court improperly (1) restricted the defendant’s cross-examination of a witness, (2) ruled on evidentiary matters and (3) denied his motion for judgment of acquittal, which he based on insufficient evidence. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On December 23, 1996, at approximately 1 p.m., the defendant, Michael Capozziello, Charles Jones and Jasper Dudley participated in the armed robbery of a Bridgeport auto parts store. Capozziello subsequently confessed to the crime, implicating the defendant and the two others. Capoz-ziello testified against the defendant at trial. Additional facts will be discussed where relevant to the issues on appeal.

I

The defendant claims first that the court improperly restricted his cross-examination of Capozziello, thereby effectively depriving him of his right to confront the witnesses against him under article first, § 8, of the constitution of Connecticut, and the sixth and fourteenth amendments to the United States constitution. We do not review this claim.

The defendant did not preserve this issue at trial and, therefore, he can obtain review of this claim only under the doctrine enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine. Practice Book § 60-5; see State v. Quinones, 56 Conn. App. 529, 531, 745 A.2d 191 (2000). The defendant’s claim does not satisfy the criteria established under either doctrine.

It is the responsibility of the defendant to provide this court with an adequate record and to brief each issue adequately. Practice Book § 61-10; Taylor v. State Board of Mediation & Arbitration, 54 Conn. App. 550, 558, 736 A.2d 175 (1999) (“ ‘[i]t is the responsibility of the appellant to provide an adequate record for review’ ”), cert. denied, 252 Conn. 925, 747 A.2d 1, cert. denied, 530 U.S. 1266, 120 S. Ct. 2729, 147 L. Ed. 2d 992 (2000); State v. Ramos, 36 Conn. App. 831, 839, 661 A.2d 606 (“[w]e are not required to review issues that have been improperly presented to this court through an inadequate brief’), cert. denied, 235 Conn. 902, 665 A.2d 905 (1995). The defendant has not presented this court with an adequate record to review this claim, nor has he provided any analysis of this claim in his brief to support a reversal of the court’s judgment on the basis of Golding review. “[CJlaims on appeal that are inadequately briefed are deemed abandoned. . . . This rule applies to claims that the defendant is entitled to . . . Golding review.” (Internal quotation marks omitted.) State v. Salvatore, 57 Conn. App. 396, 401, 749 A.2d 71, cert. denied, 253 Conn. 921, 755 A.2d 216 (2000). Accordingly, this claim is deemed abandoned. See State v. Perry, 58 Conn. App. 65, 71 n.4, 751 A.2d 843 (2000) (inadequately briefed claim deemed abandoned). Additionally, the defendant did not request review of this claim under the plain error doctrine. We therefore decline to afford review to this unpreserved claim.

II

In his second claim, the defendant argues that the court improperly ruled on an evidentiary matter. Specifically, he claims that the trial court improperly failed to admit into evidence a handwritten receipt from a jewelry store owner, thereby violating his right to compulsory process under the sixth amendment to the United States constitution. We disagree.

The following additional facts are relevant to our resolution of this claim. In support of the defendant’s alibi defense, his wife testified that the defendant and Dudley accompanied her to New Haven on December 23, 1996, the day of the robbery, where she purchased a ring for her brother. She stated that although the original receipt for the transaction was probably somewhere in her home, she had in her possession a duplicate handwritten receipt with her that was issued by Richard Estelle, the store’s owner, in July, 1997. Estelle testified that the receipt, which he described as a letter, was not the standard form of receipt issued by his store, that he could not locate a receipt for the items the defendant and Dudley claimed they purchased that day, that he had no present recollection of the events of the day of the robbery and that Dudley had provided the information contained in the receipt.

The defendant sought to admit the receipt as a full exhibit “for the purpose of the credibility of the witness.” The court sustained the state’s objection that the information contained in the receipt was hearsay and that the witness’ credibility could not be bolstered by such hearsay. The defendant argued that the receipt was not hearsay because it was not offered to prove that a ring was purchased. The court, however, agreed with the state that the receipt was being offered to prove the truth of the matter asserted therein, namely, that the defendant was in New Haven on the date of the robbery buying a ring. Therefore, the court excluded its admission into evidence on the basis of hearsay.

“Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement.” (Internal quotation marks omitted.) State v. Cramer, 57 Conn. App. 452, 457, 749 A.2d 60, cert. denied, 253 Conn. 924, 754 A.2d 797 (2000). The trial court’s decision that the receipt was hearsay was an evidentiary one, and “[o]n appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference. . . . Rulings on such matters will be disturbed only upon a showing of clear abuse of discretion.” (Internal quotation marks omitted.) State v. Huckabee, 54 Conn. App. 758, 761, 738 A.2d 681 (1999).

We conclude that the context in which the receipt was presented indicates that the statement was offered to prove that the defendant was in New Haven, not in Bridgeport, on the day of the robbery, and that it was, therefore, hearsay. Accordingly, we conclude that the court properly exercised its broad discretion in excluding the receipt.

Even if we were to assume arguendo that the defendant’s sixth amendment right was implicated by the court’s failure to admit the receipt into evidence, any error was harmless in light of the fact that Estelle testified as to the contents of the receipt and the jury was not deprived of the information contained therein. Accordingly, we reject the defendant’s claim that he is entitled to a new trial because the court failed to admit the receipt into evidence.

Ill

The defendant’s final claim is that the verdict was not supported by the evidence. He argues that there was insufficient evidence before the jury for it to find the defendant guilty of conspiracy to commit robbery in the first degree. We do not agree.

“In reviewing a sufficiency of the evidence claim, we apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239, 745 A.2d 800 (2000).

Under the statute establishing culpability for conspiracy, “ [a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” General Statutes § 53a-48 (a). Our Supreme Court has held that “[t]o establish the crime of conspiracy under § 53a-48 ... it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. . . . Intent is generally proven by circumstantial evidence because direct evidence of the accused’s state of mind is rarely available. . . . [I]ntent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; internal quotation marks omitted.) State v. Henry, 253 Conn. 354, 367, 752 A.2d 40 (2000).

On the basis of the evidence and the reasonable inferences drawn therefrom, we conclude that there was sufficient evidence for the jury to find that the defendant had agreed with Capozziello, Jones and Dudley to commit the robbery of the auto parts store, that he did so with the intent that the robbery take place, and that he committed an overt act in furtherance of that agreement. On the morning of the robbery, the defendant, Dudley, Capozziello and Jones drove around in Dudley’s vehicle. The four discussed robbing an Army-Navy store, and the defendant suggested robbing the auto parts store where he had worked, stating that he knew where the money was located. When the four arrived at the auto parts store, the defendant entered the store to survey the area. After he exited the store, Jones and Capozziello committed the robbery, and then the four men divided the illicit proceeds.

From this evidence, the jury reasonably could have found that the defendant and the three others agreed to rob the auto parts store, and that the defendant aided in accomplishing that result by choosing the location of the robbery and monitoring the store prior to the robbery. Accordingly, we conclude that there was sufficient evidence to support the defendant’s conviction of conspiracy to commit robbery in the first degree.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a~134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery . . . or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . . .”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       The defendant was tried along with Jones and Dudley in a consolidated trial. Jones and Dudley were each convicted of the same crimes as the defendant and have appealed to this court.

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him .... No person shall be . . . deprived of life, liberty or property without due process of law . . . .”

       The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him . . .

         The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonslrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)

       The defendant has not presented us with the relevant portions of the transcript, and the only analysis he provides is to state that “[t]he defendant has satisfied all prongs of [the Golding] test.”