text:
    State of Connecticut v. Kenneth Gelormino, Sr.
    (8337)
    Spallone, Lavery and Landau, Js.

      Argued February 5
    decision released May 7, 1991

      John J. Davenport, with whom, on the brief, was Timothy C. Moynahan, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom, on the brief, were Frank S. Maco, state’s attorney, and John Dropick, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crimes of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2), and assault in the second degree in violation of General Statutes § 53a-60 (a) (1). On appeal, the defendant claims that the trial court improperly denied his motion for judgment of acquittal in violation of due process under the state and federal constitutions, and relied on false information when imposing sentence. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The victim, Gordon Vaill, was an acquaintance of the defendant, Kenneth Gelormino, Sr., and his sons, Kenneth Gelormino, Jr., and William Gelormino. On the evening of August 12, 1988, Vaill and his friend, Dominic “Doc” Consolini, broke into the defendant’s family business, Trim Unlimited, located in Torrington and took a red toolbox which they hid in a nearby house, intending to sell it at a later time.

The next morning, neighbors told Kenneth Jr. that they had seen two men loading a red box into a black pickup truck outside Trim Unlimited. Kenneth Jr. discovered a broken window at the rear of the shop, but did not report the break-in or the theft of the toolbox to the police.

That afternoon, the defendant, suspecting the victim’s involvement, called the victim’s girl friend, Audrey McDonald, and asked her where the victim was staying. Upon her indication that the victim was staying at Consolini’s house, the defendant and his sons picked up McDonald at her home and drove her to Pulaski Street, where she identified Consolini’s house. They parked nearby and discussed who would have the best chance of gaining entry into Consolini’s house. They agreed that William would go to the house and ask for the victim.

They left McDonald at a restaurant and drove back to the Consolini house. William entered the house through a side door and told the victim, who was sitting on a sofa in the living room, that he was there for a social visit.

At that point, the defendant and Kenneth Jr. entered the house through the side door and William left. The defendant and Kenneth Jr. asked the victim for the tool box and when the victim denied knowing anything about it, the defendant punched the seated victim in the head, rendering him stunned and dazed. The defendant continued beating the victim with his fists and with a belt with metal rings, hitting his head, shoulders and back. Present during the altercation was Danielle Gordon who was told by the defendant that the victim was being beaten because he had taken something from them. Gordon left the house during the beating and waited around the corner. The defendant continued to beat the victim while Kenneth Jr. searched the house. Thereafter, Kenneth Jr. joined the defendant in the assault, and began striking the victim with a wooden two-by-four. During the assault, the victim remained seated and attempted to shield his head with his hands.

After beating the victim, the defendant and Kenneth Jr. asked him who owned the television set that was in the room. Upon being told by the victim that the set belonged to Consolini, Kenneth Jr. stated, “It is mine now.” He then picked up the television set and took it with him as he left the house with the defendant.

The victim was faint, dizzy and bleeding from multiple lacerations. The police, responding to a call, arrived at the house where they found the victim seated on the porch. After obtaining a search warrant, the police entered Consolini’s house where they found a blood stained two-by-four, a blood stained cane shaft and its detached handle, and red stains on the back and arm of a love seat, on a cushion, on the stove top, on the kitchen floor and on a tabletop.

The victim was transported to the emergency room of Charlotte Hungerford Hospital where he was treated for multiple lacerations and abrasions to his head, face, arm and leg and for abdominal pain and shock. Upon a determination that the victim was bleeding internally, emergency surgery was performed for a ruptured spleen which was caused by blunt and severe trauma to the abdomen or back. The victim was hospitalized for ten days after surgery, including five days in intensive care. On August 27, he was readmitted for a second surgical procedure to relieve symptoms caused by adhesions which resulted from the splenic injury and the initial surgery.

The defendant and his two sons were arrested as a result of the incident. The defendant was charged with assault in the first degree; General Statutes § 53a-59 (a) (1); burglary in the first degree; General Statutes § 53a-101 (a) (1) and (2); and larceny in the fifth degree; General Statutes § 53a-125a.

The defendant and his sons were tried jointly to a jury of six. Prior to submitting the case to the jury, the court granted the defendant’s motion for judgment of acquittal on the charge of assault in the first degree because the evidence failed to support the allegation that the defendant caused serious physical injury with a dangerous instrument, and indicated that it would charge instead on assault in the second degree. The court subsequently deleted subsection (1) (armed with a dangerous instrument) from the burglary charge, and instructed the jury only on subsection (2) (intentionally inflicts or attempts to inflict bodily injury). The court also granted the defendant’s motion for acquittal on the larceny charge.

The jury found the defendant guilty of assault in the second degree and burglary in the first degree. Thereafter, the defendant filed motions for judgment of acquittal on the assault and burglary counts. These motions were denied.

The trial court sentenced the defendant to five years of imprisonment on the assault charge and twenty years imprisonment on the burglary charge, execution suspended after ten years, to be served consecutively, for a total effective sentence of twenty years imprisonment suspended after fifteen years, with five years probation. This appeal followed.

I

The defendant’s first claim, that the trial court improperly denied his motion for a judgment of acquittal on the charge of burglary in the first degree, is raised in three parts. We will examine each in turn.

The defendant argues first that he could not, as a matter of law, be convicted of burglary as charged in the information and bill of particulars after the trial court ruled that there was insufficient evidence to sustain a conviction of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). This claim arises in the following context. The defendant was charged with burglary in the first degree in violation of General Statutes § 53a-101. The state filed a bill of particulars regarding the burglary charge that provided in pertinent part that the defendant committed the crime of burglary in the first degree by “remaining unlawfully in the building in said premises with the intent to commit therein the crime of assault in the first degree Connecticut General Statutes § 53a-59 (a) (1) . . . ,” General Statutes § 53a-59 (a) (1) provides: “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 . . . .’’At trial, the court ruled that there was insufficient evidence that the use of a deadly weapon or dangerous instrument had caused the victim’s serious physical injury and therefore granted the defendant’s motion for a judgment of acquittal on the assault in the first degree charge. Accordingly, the trial court did not instruct the jury as to the elements of assault in the first degree, charging instead on assault in the second degree.

As to the burglary charge, the court instructed the jury that a conviction required, among other elements, the intent to commit assault. The defendant asserts that the inconsistency between the intent to commit assault charge and the intent to commit assault in the first degree, as described in the bill of particulars, violated his due process rights.

The purpose of the bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise. State v. Roque, 190 Conn. 143, 156, 460 A.2d 26 (1983). It is well settled that a bill of particulars limits the state “ ‘to proving that the defendant has committed the offense in substantially the manner described.’ ” State v. Steve, 208 Conn. 38, 44, 544 A.2d 1179 (1988). It is the defendant’s burden on appeal to demonstrate that “he was in fact prejudiced in his defense on the merits” as a result of a material variance between the allegations in a bill of particulars and proof at trial, and that “substantial injustice was done to him because of the language of the state’s pleadings.” State v. Roque, supra. We find that the court’s charge to the jury was in substantial conformity with the facts alleged in the state’s bill of particulars and that the defendant has not established that any variance prejudiced the presentation or preparation of his defense.

The defendant was charged in the bill of particulars with assault in the first degree. He was, thereby, put on notice that he may be convicted of that charge or of any lesser included offenses of the crime charged. State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980). The defendant was fully informed of the charges against him and the events underlying those charges. The difference between burglary with the intent to commit assault in the first degree and burglary with the intent to commit assault has not been shown to have had any prejudicial impact on the defendant’s preparation or presentation of his defense on the merits. The lack of prejudice is fatal to his claim. State v. Roque, supra; State v. Markham, 12 Conn. App. 306, 313, 530 A.2d 660 (1987).

The defendant’s argument that the trial court’s decision granting his motion for a judgment of acquittal on the charge of assault in the first degree precluded, as a matter of law, a conviction of burglary as charged is also without merit. The trial court found the evidence insufficient to show that the defendant had caused serious physical injury with the belt used to beat the victim. It did not, however, indicate that the intent to cause such injury was absent. Indeed, the decision by the trial court to submit the burglary charge to the jury indicates rather the opposite. A conviction for burglary does not require proof that the underlying crime actually occurred. State v. Little, 194 Conn. 665, 675, 485 A.2d 913 (1984). It is burglary whether the defendant successfully carries out his intent or not. Id.

In the second part of his argument, the defendant asserts that the evidence was insufficient to support the jury’s conclusion that he had unlawfully remained on the premises. Our review of such a claim is limited. A finding of fact by the jury must stand if it is reasonably supported by the evidence or the reasonable inferences drawn therefrom. State v. Allen, 216 Conn. 367, 380, 579 A.2d 1066 (1990). The evidence presented is viewed in the light most favorable to sustaining the verdict.

General Statutes § 53a-100 (b) provides: “A person ‘enters or remains unlawfully’ in or upon premises when the premises, at the time of such entry or remaining, are not open to the public and when the actor is not otherwise licensed or privileged to do so.” The defendant asserts that (1) because Consolini generally left the doors to his house unlocked, the premises were “generally open to the public acquainted with Doc Consolini,” (2) he was privileged to enter to retrieve stolen goods, and (3) he had a license to enter created by the victim’s consent to his entry as evidenced by the fact that the defendant was “never asked to leave” and when the defendant and the codefendants “arrived, they came in and started talking in an apparent ‘social visit.’ ” These claims have no merit.

No evidence was presented that Consolini’s house was open to the public. Although one may be privileged to enter another’s property to retrieve his goods, the act must be reasonable, and burglary is an unreasonable act even if the occupant of that house had stolen items from the defendant. State v. Messier, 16 Conn. App. 455, 462, 549 A.2d 270, cert. denied, 209 Conn. 829, 552 A.2d 1216 (1988). This is so because burglary requires the intent to commit a crime within the building, and not merely the intent to recover one’s property. Finally, even if the evidence could be construed to show the victim’s implicit consent to the defendant’s entry, the vicious assault perpetrated on the victim was clearly not within the scope of that consent. State v. Allen, supra.

The third and final part of the defendant’s first claim is that the evidence was insufficient to support a finding by the jury that the defendant had the intent to cause serious physical injury or that the defendant had in fact caused serious physical injury to the victim, as required to support a conviction of assault in the second degree. As explained above, our review of these factual conclusions is limited on appeal. The Appellate Court does not “ ‘retry the case or evaluate the credibility of the witnesses.’ ” State v. Hart, 198 Conn. 424, 427, 503 A.2d 588 (1986). Our review of the transcripts reveals that the jury had before it ample evidence from which it could reasonably conclude that the defendant possessed the requisite intent and had, in fact, caused the victim’s serious physical injuries.

II

The defendant’s second claim is that the trial court violated his state and federal constitutional rights to due process when the court allegedly relied on false or unreliable information in determining the defendant’s sentence. Specifically, he takes issue in two areas with regard to the court’s sentencing remarks that indicated that the court believed (1) that the defendant had influenced his son to offer testimony exonerating the defendant, which testimony was not believed by the jury, and (2) that the toolbox introduced into evidence by the defense was not the toolbox that allegedly had been stolen but one purchased for use as evidence at trial.

The facts pertaining to this claim are as follows. A defense witness who lived next door to Trim Unlimited testified that on the evening of August 12,1988, he saw two men taking a red toolbox to a truck parked in front of his driveway. The box was being pushed and pulled along the ground to the truck. Another defense witness testified that on August 13,1988, he bought a toolbox from Dominic Consolini for $200. The toolbox was a red Snap-on model containing tools and measured three feet by three feet. Neither witness was asked at trial to identify a particular toolbox as the one they saw in 1988. Kenneth Jr. also testified for the defense. During his testimony, a toolbox measuring twenty-six inches by fourteen and one-half inches by seventeen inches and its contents of tools were entered as an exhibit for identification. He expressly identified the exhibit as the toolbox taken from him and claimed that he used the tools in his trade. The state specifically questioned the authenticity of the proffered exhibit as the toolbox that was stolen. The court observed the toolbox. In addition, Kenneth Jr. completely exonerated the defendant of any involvement whatsoever in the assault on the victim and upon cross-examination by the defendant he maintained that position.

Included in the trial court’s sentencing remarks was the following language: “You chose, and it was your right not to testify and not to explain what happened. Instead, you had your son, who the court believes was under your dominion and control, take the stand and concoct a story which the jury found not credible and in a decision with which that court concurs. When one examines the exhibits, defendant’s photograph of the toolbox, it stretches credibility to the limit to have any belief that the toolbox had been used by anyone, but had just been purchased for the sole reason to have some evidence presented to the court. [There] does not appear to be a scratch on the outside of the toolbox, tools appear not to ever have been used. As far as the toolbox is concerned, I believe the jury rejected it, as was their right. I believe their decision was correct.” The defendant contends that the foregoing remarks indicate that the trial court relied on “false” information and engaged in speculation and conjecture in sentencing him.

Due process considerations at sentencing are less expansive than those afforded a defendant at trial. State v. Huey, 199 Conn. 121, 127, 505 A.2d 1242 (1986). The sentencing court has extremely broad discretion, and may consider information that was not admissible or otherwise not presented at trial, as long as that information has some minimal indicium of reliability. Williams v. New York, 337 U.S. 241, 246-47, 69 S. Ct. 1079, 93 L. Ed. 337 (1949); State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986); State v. Whittingham, 18 Conn. App. 406, 416, 558 A.2d 1009 (1989). “As long as the sentencing judge has a reasonable, persuasive basis for relying on the information which he uses to fashion his ultimate sentence, an appellate court should not interfere with his discretion.” State v. Huey, supra. A review of the evidence adduced at trial, coupled with the trial court’s own observations fails to demonstrate that the court relied on information that was materially false or unreliable. The authenticity of the toolbox and his son’s denial that the defendant participated in the beatings were at issue and challenged by the prosecution. In the matter of the defendant’s culpability, it is apparent from the verdict that the jury rejected his son’s testimony that the defendant did not engage in beating the victim. The court’s own observations, along with the evidence and the verdict, fail to support a conclusion that the trial court’s remarks were based on false and unreliable information. We cannot say that the trial court acted improperly when sentencing the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       At the end of the state’s case, the trial court granted William Gelormino’s motion for judgment of acquittal on all counts. Kenneth Gelormino, Jr., is appealing separately from his convictions in this case. State v. Gelormino, 24 Conn. App. 556, 590 A.2d 476 (1991).

       General Statutes § 53a-101 (a) provides: “A person is guilty of burglary in the first degree when he enters or remains unlawfully in a building with intent to commit a crime therein and: (1) He is armed with explosives or a deadly weapon or dangerous instrument, or (2) in the course of committing the offense, he intentionally, knowingly or recklessly inflicts or attempts to inflict bodily injury on anyone.”

       The bill of particulars regarding burglary provides as follows: “The State of Connecticut alleges that the defendant, Kenneth M. Gelormino, Sr., with intent that conduct constituting a crime be committed, did commit the crime of Burglary in the First Degree at 146 Pulaski Street, Torrington, CT, on or about August 13,1988, in that the defendant, remaining unlawfully in the building at said premises with intent to commit therein the crime of Assault in the First Degree Connecticut General Statutes § 53a-59 (a) (1) and was armed with a dangerous instrument, to wit: a belt with metal rings and fists, and in the course of committing the offense he intentionally and knowingly inflicted bodily injury on another, one Gordon A. Vaill, in violation of Connecticut General Statutes § 53a-101 (a) (1) and (2).”


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. William Toby Wright, Jr.
    (9307)
    Spallone, Norcott and Fon, Js.
    Argued February 14
    decision released May 7, 1991

      John Williams, with whom, on the brief, was David B. Bachman, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Marcia Smith, senior assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of the trial court revoking his probation and reinstating the suspended portion of his original sentence. He challenges the court’s holdings that (1) he violated a lawfully imposed probation, and (2) he had no right to a jury trial. We affirm the trial court’s judgment.

The court found the following facts. On November 5, 1986, the Superior Court in the judicial district of Waterbury sentenced the defendant to the custody of the commissioner of correction for a term of fifteen years to be suspended after four years to be followed by placement in the custody of the department of adult probation for a period of four years. The sentence was imposed to run concurrent with any sentence that the defendant was then serving. The defendant entered upon the service of the sentence and on October 17, 1989, he was released from the correctional institution. On October 31,1989, fifteen days after his release from prison, he was arrested by officers of the Waterbury police department. A search of his person revealed that he possessed forty-three plastic vials of crack cocaine in his left exterior pocket. In his left inside pocket, the police found nine glassine bags containing heroin.

At no time was the defendant requested to execute nor did he execute any standard condition of probation forms. The court, however, found that the defendant, a probationer, was obligated to obey the laws of this state and could not violate its criminal laws. Refraining from criminal activity is an integral part of probation and requires no special order or condition. There was no claim nor any evidence presented indicating that the defendant was unaware of his obligation not to violate the law. The court concluded that the requirement that a probationer not violate the criminal law is sufficiently fundamental to the purpose of probation as to be inherent in the order of probation and that its existence as a requirement does not turn on whether the defendant signed written conditions or whether this condition was expressly stated by the court.

We first note that the defendant does not challenge the court’s factual findings that the defendant, while on probation, violated the laws of the state of Connecticut. Further, the defendant conceded during oral arguments that the general conditions of probation are presumed as an integral part of probation, even absent signed conditions by the probationer. Instead, the gravamen of the defendant’s claim is that he did not know that he was on probation. He claims that the state’s failure to inform him that he was on probation constituted a denial of due process that would therefore estop the state from prosecuting him for a violation of conditions of a probation it had never lawfully imposed. The defendant’s argument is twofold. First, he argues that at the time of sentencing sufficient ambiguity existed to confuse him regarding the terms of the imposition of probation. He also argues that upon being released from prison he should have been advised of his probation. Both arguments are without merit.

The defendant testified at the probation revocation hearing that when he was sentenced on November 5, 1986, he heard the court impose the sentence, and that prior to accepting the plea agreement he had discussed it with his attorney. The attorney explained to him that he would receive a sentence that would run concurrent with the sentence he was already serving and that he would also be placed on probation for four years. He admitted that he had been sentenced to probation many times before and had also been found in violation of probation for the commission of a crime while on probation.

The defendant points to the comments of the state’s attorney at sentencing to demonstrate that he had a reasonable basis to believe he would have “nothing hanging over his head” when he was released from incarceration. The record reveals that the state’s attorney stated: “The agreement is that the state will recommend a sentence of fifteen years suspended after four years to be followed by four years probation. And that sentence is to run concurrently with the sentence Mr. Wright is presently serving. That is for Your Honor’s information. That sentence was, I believe, a ten year sentence imposed on a violation of probation. It is my understanding that this agreement of fifteen [years to be] suspended after four to run concurrent with that will not add any time to Mr. Wright’s incarceration at this time.”

Thereafter, the court imposed sentence in accordance with the stated plea agreement. The defendant argues that “to run concurrently with the sentence” presently being served, and, “that will not add any time to [his] incarceration at this time” is so ambiguous that it became an improper sentencing as to probation, because he did not know if he was on probation or when it was to start.

We conclude from a review of the record that no ambiguity exists. Probation commences on the day that it is imposed “except that, where it is preceded by a sentence of imprisonment with execution suspended after a period of imprisonment set by the court, it commences on the day the defendant is released from such imprisonment.” General Statutes § 53a-31 (a). The defendant heard the plea agreement, after having it explained to him by his attorney, and heard and understood the sentence. He was not new to the criminal justice system, nor the adult probation system. He was aware of the procedures from past experience.

The sentence, which followed the terms of the plea agreement, was clear and unambiguous. The unsuspended portion of the sentence, four years, was to run concurrent with the sentence that the defendant was then serving and it added no time to his incarceration, that is, time to be served in prison. There was also a period of eleven years “hanging over his head” for the four years that he was on probation. His probation would commence by operation of law on the day that he was released from prison.

The defendant cites no case that deals explicitly with a question of whether a probationer has a due process right to be informed clearly of the fact that he is on probation, either at sentencing or upon release from incarceration. It is clear from the record that the defendant understood that probation was part of the sentence imposed on him, the terms of that sentence being announced in open court. The court never specified when probation would commence; it has no duty to do so. Nor is there any such requirement upon his release from prison.

An appellate court’s review of an order revoking probation is to determine whether the trial court abused its discretion; State v. Roberson, 165 Conn. 73, 327 A.2d 556 (1973); and we must review the reasonableness of two findings: whether the defendant violated the conditions of probation, and whether he should be incarcerated because the rehabilitative purpose of probation cannot continue to be served. State v. Navikaukas, 12 Conn. App. 679, 682, 533 A.2d 1214 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74 (1988).

In this case, the defendant has not established that the court’s determinations were unreasonable and an abuse of discretion.

The defendant next challenges the court’s denial of his claimed right to a jury trial in his probation revocation proceedings. His claim rests entirely on Connecticut law, specifically article first, § 8, of the Connecticut constitution and Practice Book § 943. He argues that Practice Book § 943, which governs revocation proceedings, incorporates Practice Book § 645, which provides that “[i]f the defendant pleads not guilty, he shall be asked whether he desires a trial either by the court or by a jury.”

Article first, § 8, provides that, in all criminal prosecutions by information, the accused shall have a right to be tried by an impartial jury. A probation revocation hearing is not a criminal prosecution. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). It does not require all of the procedural components associated with an adversary criminal proceeding. Morrissey v. Brewer, 408 U.S. 471, 480, 489, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The standard of proof in a criminal trial of “beyond a reasonable doubt” is not applicable to a probation revocation hearing; State v. Smith, 207 Conn. 152, 177, 540 A.2d 679 (1988); because revocation hearings are not concerned with punishment and retribution because punishment in probation revocation is attributable to the crime for which the defendant was originally convicted and sentenced. Id., 177-78.

The defendant also argues that because an information was filed charging him with violating his probation, he is entitled to a trial by jury. It is not the form of charging that gives rise to the right to a jury trial, but rather the class of crimes charged. See State v. Weisser, 9 Conn. App. 255, 256-57, 518 A.2d 655 (1986), cert. denied, 202 Conn. 803, 519 A.2d 1207 (1987). Because a revocation hearing is not a criminal prosecution, the consequences of being found in violation must derive from the original conviction from which probation was granted. State v. Smith, supra, 176-77.

The defendant argues further that Practice Book §§ 943 and 645 provide him the opportunity to elect a trial by jury. Practice Book § 943 provides in part that “[i]f . . . the judicial authority finds from the evidence [at the revocation hearing] that [the defendant] committed the violation, the judicial authority may make any disposition authorized by law.” Practice Book § 1021 (1) defines judicial authority as “the superior court and each judge of the superior court.” Practice Book § 943, therefore, allows for a judge of the Superior Court to be the trier of fact in a probation revocation hearing.

The defendant also argues that because Practice Book § 943 provides that all proceedings shall be in accordance with the provisions of §§ 634 and 660, he is entitled to a jury trial. Practice Book § 634 is the heading for a number of sections dealing with arraignment. A review of the arraignment provisions shows that not all of them apply to probation revocation proceedings. Practice Book § 643 requires that a defendant enter a plea of “not guilty, guilty or nolo contendere.” Because a revocation proceeding is not a criminal prosecution, a defendant need only deny or admit the violation charged. Similarly, Practice Book § 645, which allows for an election for a jury trial after a plea of not guilty, also does not apply to revocation of probation hearings.

The judgment is affirmed.

In this opinion the other judges concurred.

       “It is universally held that the commission of a felony violates a condition inherent in every probation order. . . . Had the sentencing court in this case merely placed the defendant on probation and said no more, commission of a felony would nevertheless constitute a violation sufficient to authorize revocation of probation.” (Citations omitted.) State v. Roberson, 165 Conn. 73, 77, 327 A.2d 556 (1973).

       Article first, § 8, of the Connecticut constitution provides: “In all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless on a presentment or an indictment of a grand jury, except in the armed forces, or in the militia when in actual service in time of war or public danger.”

       Practice Book § 943 provides: “In cases where the revocation of probation is based upon a conviction for a new offense and the defendant is before the court or is being held in custody pursuant to that conviction, the revocation proceeding may be initiated by a motion to the court by a probation officer and a copy thereof shall be delivered personally to the defendant. All other proceedings for revocation of probation shall be initiated by an arrest warrant supported by an affidavit or by testimony under oath showing probable cause to believe that the defendant has violated any of the conditions of his probation or his conditional discharge or by a written notice to appear to answer to the charge of such violation, which notice, signed by a judge of the superior court, shall be personally served upon the defendant by a probation officer and contain a statement of the alleged violation. All proceedings thereafter shall be in accordance with the provisions of Secs. 634 and 660. At the revocation hearing, the prosecuting authority and the defendant may offer evidence and cross-examine witnesses. If the defendant admits the violation or the judicial authority finds from the evidence that he committed the violation, the judicial authority may make any disposition authorized by law.”

       Practice Book § 645 provides: “If the defendant pleads not guilty, he shall be asked whether he desires a trial either by the court or by a jury. Pursuant to these rules, including Sec. 971, the case shall be placed on the trial list and, where possible or necessary, assigned dates for a disposition conference, a probable cause hearing, and/or a trial.”


author: Per Curiam.

text:
    Mark Paradiso et al. v. William V. Gambardella, Executor (Estate of Frances L. Paradiso), et al.
    (9565)
    Spallone, Laveky and Landau, Js.
    Submitted on briefs March 19
    decision released May 7, 1991

      Jerome N. Goldstein and Donald E. Wetmore filed a brief for the appellants (plaintiffs).

      William V. Gambardella filed a brief for the appellee (named defendant).
   Per Curiam.

The plaintiffs appeal from the judgment of the trial court dismissing their appeal from an order of the Probate Court. The Probate Court had approved the sale of real property owned by the estate of Frances L. Paradiso. The plaintiffs, Mark R. Paradiso and Maria L. Paradiso, are two of the three children of the decedent. They claim that the trial court (1) improperly affirmed the decision of the Probate Court accepting a sealed bid made on the property by a nonfamily member because the bidding was to be open only to immediate members of the family by order of the Probate Court and because the bid contained conditions and contingencies exceeding those ordered by the Probate Court, and (2) improperly upheld the Probate Court’s acceptance of a negotiated bid when the court ordered sealed bids. We affirm the judgment of the trial court.

At trial, it was stipulated that the court should decide the appeal based on the record contained in the court file. That record reveals the following. The decedent left all of her property, both real and personal, to her three children in equal shares. Upon request from the attorney for the estate, the Probate Court directed that there be a private sale of certain real property owned by the estate. The plaintiffs agreed to purchase the property for $131,500 subject to their obtaining a mortgage at prevailing interest rates. Kevin W. Condon, who was designated by the Probate Court as the committee to sell the property, signed a contract of sale with the plaintiffs. The sale, however, was subject to the approval of the Probate Court. Upon review, the Probate Court refused to authorize the sale because not all of the interested parties understood or were advised that bids would be accepted or acted on. The court directed that the bidding process be reopened in a private sale open to the immediate members of the family, including the three children and Paul Gambardella. The conditions of the sale were that the bids must have been received by 5 p.m. on November 20, 1989, accompanied by a 5 percent deposit, and that the deposit funds and purchase funds paid at the closing come from sources independent of the estate. This invitation for bids did not direct a closing date nor did it preclude a mortgage contingency clause.

The bids were opened by the committee on November 20,1989. The plaintiffs bid $140,720.29 with a closing date of December 20, 1989. Gambardella bid $141,651.01 with a closing date of February 28,1990, contingent upon the receipt of third party financing at 9.75 percent. The committee decided to sell to Gambardella, the highest bidder, on the condition that the closing of title take place on or before December 20, 1989, and indicating that if Gambardella was unable to close by that date, the property would be sold to the plaintiffs at their bid price. The committee’s decision to accept Gambardella’s bid was based on the purchase price and overall benefit to the estate. On December 13, 1989, the Probate Court approved the sale and the plaintiffs appealed.

It is clear from a review of the file in this case that the Probate Court directed that there be a private sale of the property open to the immediate family members and Paul Gambardella. The plaintiffs first claim is therefore factually inaccurate and without merit.

The terms of sale regarding a closing date and a standard mortgage contingency clause did not violate the conditions of sale as set forth by the Probate Court. Nor did the imposition of those conditions on the highest bidder exceed the statutory authority granted to the Probate Court or result in a negotiated sealed bid. General Statutes § 45a-164 (a) (formerly § 45-238) authorizes the Probate Court to direct the sale of any real property of an estate “if the court finds it would be for the best interests of the parties in interest . . . .’’The Probate Court determines whether the sale shall be public or private and, if a private sale is directed, the court may “determine the price and the terms of the sale, including purchase money mortgage or mortgages, as it considers reasonable and advisable.” General Statutes § 45a-166 (a).

The Probate Court did not abuse its discretion in authorizing a private sale of the property for the amount of the highest sealed bid and in approving that sale upon reasonable terms in the best interests of the estate.

The judgment is affirmed.

       The defendants at the trial court were Joyce Paradiso, a child of the decedent, Kevin W. Condon, who was designated by the Probate Court as the committee to sell the subject property, Paul Gambardella, whose bid on the subject property was accepted, and the estate. Only the estate has filed an appearance in this appeal.


author: O’Connell, J.

text:
    State of Connecticut v. Joseph E. King, Jr.
    (9238)
    Dupont, C. J., O’Connell and Nokcott, Js.
    Argued December 14, 1990
    decision released May 7, 1991

      Albert J. McGrail, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were John Bailey, state’s attorney, and Dennis O’Connor, senior assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (3) (reckless manslaughter in the first degree). The defendant argues that the trial court improperly failed to charge the jury that the defense of self-defense was applicable to this crime as well as to other lesser included offenses. We agree and reverse the judgment of the trial court.

This case arose out of a barroom argument that led to a fight in the parking lot outside the bar. The victim died of a stab wound to the heart and the defendant was charged with murder. At trial, the defendant claimed that he had acted in self-defense and the jury convicted him of the lesser included offense of reckless manslaughter in the first degree.

The defendant had filed a written request to charge on self-defense pursuant to General Statutes § 53a-19. The court instructed the jury that self-defense was a valid defense to the original charge of murder and to the lesser included offense of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l) (intentional manslaughter in the first degree). The court also specifically instructed the jury that the defense of self-defense was not applicable to the lesser included offenses of reckless manslaughter in the first degree, manslaughter in the second degree in violation of General Statutes § 53a-56 and criminally negligent homicide in violation of General Statutes § 53a-58.

The defendant claims that the court’s instruction deprived him of his fundamental right to establish a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); State v. Bethea, 167 Conn. 80, 83, 355 A.2d 6 (1974). “This fundamental constitutional right includes proper jury instructions on the elements of self-defense so that the jury may ascertain whether the state has met its burden of proving beyond a reasonable doubt that the [crime] was not justified.” State v. Miller, 186 Conn. 654, 660-61, 443 A.2d 906 (1982).

The state raises a threshold question of reviewability. It argues that the defendant’s claim was not properly preserved at trial and does not qualify for plain error review under Practice Book § 4185 or review under the doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We do not agree.

The general rule in Connecticut is that “[t]he appellate court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or an exception has been taken immediately after the charge is delivered by the party appealing.” State v. Fullwood, 193 Conn. 238, 259, 476 A.2d 550 (1984); see also Practice Book § 852. Section 852 provides these two options for preserving a claim, and either method alone is sufficient for this court to grant review.

In the present case, the defendant properly submitted a written request pursuant to Practice Book § 852 to charge the jury on the defense of self-defense. He also submitted written requests to charge on murder and the lesser included offenses pursuant to Practice Book § 854. The state argues that appellate review is barred by the defendant’s failure to take an exception at trial when the court refused to instruct the jury that self-defense was a proper defense to the lesser included unintentional homicides.

Nowhere within the four corners of the written request for a self-defense instruction did the defendant limit his claim of self-defense to murder and intentional manslaughter in the first degree. We therefore conclude that the written request to charge on the defense of self-defense applied to the crime charged as well as to all lesser included offenses. The defendant was not required to take any further action to preserve his appellate rights, and accordingly we will review the merits of his claim. In light of our conclusion that the defendant properly preserved this issue for appeal, we do not reach the state’s other nonreviewability arguments that are based on an incorrect assumption that this claim was unpreserved.

The defendant argues that the court should not have restricted the jury’s consideration of self-defense to the intentional homicides but instead should have allowed the jury to consider it as a defense to the lesser included unintentional offenses. Whether self-defense is a valid defense to a crime based on reckless conduct was recently addressed by our Supreme Court in State v. Hall, 213 Conn. 579, 569 A.2d 534 (1990).

In Hall, the Supreme Court concurred with the Appellate Court that the defendant was entitled to a jury instruction on self-defense with respect to the lesser included offense of manslaughter in the second degree. Id., 586. Nevertheless, the Supreme Court determined that the trial court’s failure to give this instruction was harmless because the defendant was acquitted of murder and convicted of the lesser included offense of intentional manslaughter in the first degree. The trial court had instructed the jury that the defense of self-defense was applicable only to murder and intentional manslaughter in the first degree. The Supreme Court reasoned that because the jury was fully instructed on the law of self-defense with respect to murder and intentional manslaughter in the first degree, the jury’s guilty verdict of manslaughter in the first degree was necessarily a rejection of the defense of self-defense. Id., 589.

The present case can be distinguished from Hall in one significant aspect. Here, the court’s failure to instruct on self-defense cannot be construed as harmless because, although the defendant was acquitted of murder like the defendant in Hall, this defendant was convicted of the unintentional offense of reckless manslaughter in the first degree. This jury returned a guilty verdict against the defendant for a crime in which it was not allowed to consider the defense of self-defense. Unlike the court in Hall, this court cannot conclude that the conviction in this case was necessarily a rejection of the defense of self-defense by the jury because the jury acquitted the defendant of the two crimes in which it was allowed to consider the defense of self-defense.

The state argues that Hall is distinguishable because the mental state required in reckless manslaughter in the first degree is different from that required in reckless manslaughter in the second degree. It claims that the trial court need not instruct on the defense of self-defense with respect to reckless manslaughter in the first degree because that crime requires the defendant to act under circumstances evincing an extreme indifference to human life, whereas, the crime of reckless manslaughter in the second degree does not.

The different statutory language of reckless manslaughter in the first degree and second degree does not require this court to carve out an exception prohibiting juries from considering the defense of self-defense for reckless manslaughter in the first degree when it is applicable to all other homicides. Moreover, since the defense of self-defense is available for murder, which is the extreme indifference to human life, it would be anomalous to conclude that the defense was not applicable to the lesser included offense of reckless manslaughter in the first degree.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when ... (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.”

       General Statutes § 53a-19 (a) provides: “Except as provided in subsections (b) and (c) a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       General Statutes § 53a-55 (a) provides in pertinent part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . . .”

       General Statutes § 53a-56 (a) provides in pertinent part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 53a-58 (a) provides: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.”

       Practice Book § 4185 provides in pertinent part: “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. . . .”

         We also reject the state’s argument that the defendant’s failure to take exception to the court’s limited self-defense instruction constituted a waiver of his right to raise this issue on appeal. This contention ignores Practice Book § 852, which allows this court to consider failure to give a jury instruction when the matter is covered by a written request to charge.

       We note that the trial court in the present case did not have the benefit of either the Appellate Court or the Supreme Court decisions in State v. Hall, 17 Conn. App. 502, 554 A.2d 746 (1989), aff’d, 213 Conn. 579, 569 A.2d 534 (1990), because the jury was instructed on November 4, 1987, and the State v. Hall decisions were not issued until February 21, 1989, and January 30, 1990, respectively.


author: Spallone, J.

text:
    Keith T. Manning et al. v. Harold J. Barenz et al.
    (9156)
    Spallone, O’Connell and Landau, Js.
    Argued December 11, 1990
    decision released May 14, 1991

      David W. Cooney, with whom were Kathryn Calibey and, on the brief, Brigid Donohue, law student intern, for the appellants (plaintiffs).

      Andrew J. O’Keefe, with whom, on the brief, was Maureen Sullivan Dinnan, for the appellees (defendants).
   Spallone, J.

The plaintiffs appeal from the trial court’s order granting summary judgment for the defendants. The trial court concluded that the defendant municipal employees and the defendant municipality are immune from liability pursuant to Connecticut’s “recreational use statute,” General Statutes § 52-557g. On appeal, the plaintiffs claim (1) that the trial court improperly ruled that General Statutes § 52-557g barred the plaintiffs’ claims raised in negligence and nuisance, and (2) that the defendants are not entitled to summary judgment on the basis of governmental immunity. We affirm the judgment of the trial court.

The following facts were alleged in the pleadings and other documents presented to the trial court. On August 8,1986, Keith T. Manning, who was two years old, was playing in Pershing Park in Bloomfield. Pershing Park is owned by the town of Bloomfield and open to the general public for recreational purposes without charge, rent, or fee. The town of Bloomfield conducts a summer recreation program at Pershing Park for its residents who are between the ages of six and thirteen. Manning was not, however, enrolled in this program. While reaching into a large metal box where toys and other recreational items were stored, he was seriously injured when the lid of the box fell on his hand. Despite undergoing several surgical procedures, Manning ultimately lost the thumb of his right hand. On December 30, 1986, the plaintiffs served a notice of intention to commence an action on the clerk of the town of Bloomfield as required by General Statutes § 7-465. A civil action was thereafter commenced in Hartford Superior Court.

In addition to the town, the complaint named Harold J. Barenz, Herbert Neuhauser, Connie Curran and Kevin Joiner as defendants in their capacities as town employees. The complaint alleged three counts of negligence against the employees. The fourth count, pursuant to General Statutes § 7-465, sought indemnification by the town for the negligence of its employees. The fifth and sixth counts set forth claims of negligence and nuisance, respectively, against the town. The seventh count was against all five defendants for medical expenses incurred by Manning’s mother, Michelle Cooper. The plaintiffs made no allegations of a wilful or malicious failure on the part of any defendant.

The defendants moved for summary judgment claiming that the action against the municipality and its employees or agents is barred by the Connecticut recreational use statute, General Statutes § 52-557g. The trial court granted the motion, declaring that there was no genuine issue as to the liability of the town or its agents under the protection of § 52-557g. Noting that General Statutes § 52-557f et seq. granted an “owner of land” immunity for liability for injuries, the court ruled that the town, as a landowner, was within the protection of the statute. The plaintiffs appeal from the judgment rendered for the defendants.

This appeal presents the question of whether Connecticut’s recreational use statute, General Statutes § 52-557g, applies to property owned by a municipal entity. That statute provides in relevant part: “(a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.”

The plaintiffs argue that the legislative history indicates that this statute was intended to apply to private land only. They assert that the statute should be interpreted to exclude a governmental entity from the definition of owner of land. The defendants contend that General Statutes § 52-557g operates to immunize them from liability under circumstances such as are present in this case unless there is a finding that they are guilty of wilful or malicious conduct. They urge this court to find that they have the status of an owner for the purposes of exemption under this statute.

As defined in General Statutes § 52-557Í, “ ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises . . . .” By its terms, § 52-557g refers to any “owner of land” without limiting the scope of that clause to private landowners. The grant of immunity is made to any landowner who has made land available for recreational purposes without charge. Nothing on the face of the statute indicates an intention to limit its applicability as suggested by the plaintiff. “Where the language used by the legislature is plain and unambiguous, there is no room for construction by the courts and the statute will be applied as its words direct.” Muha v. United Oil Co., 180 Conn. 720, 730, 433 A.2d 1009 (1980). The language of General Statutes § 52-557g is clear and unambiguous. We therefore hold that General Statutes § 52-557Í et seq. apply to all landowners, including governmental entities.

Our conclusion here is in accord with our earlier decision in Drisdelle v. Hartford, 3 Conn. App. 343, 488 A.2d 465, cert. denied, 196 Conn. 801, 491 A.2d 1104 (1985). In Drisdelle, we held that General Statutes § 52-557j, which provides that no landowner will be liable for injuries sustained by a person operating snowmobiles, all-terrain vehicles, minibikes or minicycles on his land unless the owner charged a fee, applied to the city of Hartford as an owner of a park. Like § 52-557j, the purpose of § 52-557g is to make land available to the public and to limit the liability of the landowner. We find no compelling reason to treat § 52-557g and § 52-557j differently.

As the municipality is a landowner for the purposes of General Statutes § 52-557g, we must now decide whether this statute applies to municipal employees. This court was confronted with the application of a recreational use statute to a municipal employee in Drisdelle, where we applied the statute to the defendant director of recreation and parks as well as to the defendant city of Hartford. Our decision in Drisdelle was reported in 1985. Since then, neither our Supreme Court nor the General Assembly has acted to transform the substance of that opinion. Accordingly, we conclude that the municipality’s immunity under § 52-557g extends to its employees. As there are no allegations of any wilful or malicious conduct on the part of the defendants, the trial court properly ruled that § 52-557g barred the plaintiffs’ claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       Manning’s claim to recover for personal injuries was brought through his mother, Michelle Cooper, who also brought an independent claim to recover for medical expenses she had incurred as a result of her son’s injuries.

       General Statutes § 52-557h provides: “Nothing in sections 52-B57Í to 52-557Í, inclusive, limits in any way the liability of any owner of land which otherwise exists: (1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section.”

       This conclusion is in accordance with a variety of jurisdictions that have held, in actions to recover for the injury or death of an entrant on property owned, operated, or occupied by a governmental entity or governmental employees, that the entity or employees were an “owner” within the meaning of a state recreational use statute applying to an “owner” of land. See, e.g., Ostergren v. Forest Preserve District, 104 Ill. 2d 128, 471 N.E.2d 191 (1984); Page v. Louisville, 722 S.W.2d 60 (Ky. App. 1986); Rodrigue v. Firemen’s Fund Ins. Co., 449 So. 2d 1042 (La. App. 1984); McNeal v. Department of Natural Resources, 140 Mich. App. 625, 364 N.W.2d 768 (1985); Watson v. Omaha, 209 Neb. 835, 312 N.W.2d 256 (1981); Sega v. State, 60 N.Y.2d 183, 456 N.E.2d 1174, 469 N.Y.S.2d 51 (1983); McCord v. Ohio Division of Parks & Recreation, 54 Ohio St. 2d 72, 375 N.E.2d 50 (1978); Hogg v. Clatsop County, 46 Or. App. 129, 610 P.2d 1248 (1980); McCarver v. Manson Park & Recreation District, 92 Wash. 2d 370, 597 P.2d 1362 (1979).

       The plaintiffs cite our earlier decision in Genco v. Connecticut Light & Power Co., 7 Conn. App. 164, 508 A.2d 58 (1986), as indicating that this statute applies only to private landowners. In Genco, we applied the statute to the owners of private property who had opened Candlewood Lake to the public for recreational purposes without a fee. In discussing the legislative history and the purpose of the statute, we stated that “the clear purpose of § 52-557g is an attempt to satisfy the public’s need for recreational and open space by encouraging private landowners, through limiting their liability, to open their land to public use.” Id., 168-69. That the statute was intended to encourage private landowners to open their property for the use and enjoyment of their fellow citizens is not disputed. The issue presented in this case is, however, whether the statute is limited to private property owners. The purpose of making available recreational and open space is not thwarted by the application of the clear and unambiguous language of the statute to governmental property owners as well as private property owners. We, therefore, do not interpret the Genco case as limiting the application of the statute, but, rather, as applying the statute appropriately to the facts of that case, i.e., applying the statute to a private property owner.


author: Heiman, J.

text:
    State of Connecticut v. Edward A. Peruta
    (9060)
    Dupont, C. J., Landau and Heiman, Js.
    Argued January 10
    decision released May 14, 1991

      C. Michael Budlong, with whom, were Steven R. Bembo and, on the brief, Terence S. Ward and Kathleen A. Murrett, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John T. Redway, state’s attorney, and Philip Scarpellino, assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that (1) the trial court improperly instructed the jury on the element of intent, (2) the trial court improperly denied the defendant’s request for a continuance, (3) the jury rendered a verdict that was contrary to law, (4) the trial court improperly failed to charge the jury on the effects of General Statutes §§ 7-313b and 7-313e, (5) the prosecutor’s closing remarks were prejudicial, and (6) the trial court improperly allowed a surprise witness to testify. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. During peak morning traffic hours on October 23, 1989, the Cromwell police were called to the scene of a fatal automobile accident at the intersection of Route 72, Industrial Park Road and the southbound ramp of Interstate 91. Officer Kevin Vandersloot, the first officer to arrive at the scene, gave medical attention to the accident victims until additional emergency personnel arrived.

When Lieutenant Anthony Salvatore arrived a few minutes later, an ambulance, police vehicles and volunteer fire personnel were at the scene. One of the accident victims was on the ground receiving CPR and Salvatore was informed that the Life Star helicopter was en route to transport this victim to a hospital. The vehicles that had been involved in the accident were in the middle of the intersection and traffic was nearly at a standstill.

Salvatore, who was treating the area as a major crime scene, began to attempt to maintain some limited traffic flow so he could clear a portion of the road to establish a landing zone for the Life Star helicopter. Salvatore was also concerned that the accident area be kept secure so his officers could gather all necessary evidence from the scene. To accomplish the latter, it was essential that all unnecessary personnel and onlookers be kept from the immediate vicinity of the accident. To assist in controlling traffic and to aid in the investigation, Salvatore recalled two officers from the midnight shift and asked for assistance from the Middletown and state police departments. Salvatore also called the news media and requested a broadcast to notify motorists to avoid the area.

The defendant, who is the chief photographer for American News and Information Services, arrived shortly after Salvatore. When Salvatore noticed that the defendant was videotaping from the center, of the westbound traffic lane, he asked the defendant to move to either shoulder of the roadway. The defendant and Salvatore exchanged words for four or five minutes before the defendant finally moved to the westbound shoulder of the road.

A few minutes later, Salvatore noticed that Vandersloot, the main investigator, was involved in a confrontation with the defendant, who was now videotaping from the narrow space between Vandersloot’s car and Salvatore’s car, in the immediate vicinity of the accident. Salvatore approached the men, relieved Vandersloot, and asked the defendant to stay out of the area, telling him that he would be arrested if he did not comply with that request. The defendant refused to move, insisted that the chief of police had given him permission to be where he was and told Salvatore that he had a constitutional right to be there and asserted that Salvatore had no authority to tell him to leave. At this point, Salvatore ordered Detective Ronald Cornell, who had just arrived at the scene, to arrest the defendant.

I

The defendant first claims that the trial court’s charge was constitutionally infirm because (1) the jury was not instructed that intent was an element of the crime, (2) the court’s comments on intent were ambiguous, and (3) there was no general instruction on intent that would have cured the first two infirmities. The defendant failed to raise this claim at trial by objecting to the jury instructions that were given, or by filing an appropriate request to charge. Practice Book § 852. He now seeks appellate review under the bypass rule of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), as reformulated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Our Supreme Court has 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 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. In this case, we will assume a constitutional violation, and then engage in a harmless error analysis under the fourth Golding prong, because a defendant cannot prevail if the state can demonstrate that any error was harmless beyond a reasonable doubt. State v. Dyson, 217 Conn. 498, 505-506, 586 A.2d 610 (1991).

In its general instructions to the jury, the trial court stated: “There are two essential elements of the crime of interfering with an officer: (1) that the defendant has obstructed, resisted, hindered, or endangered a police officer, and (2) that the conduct of the defendant occurred while the police officer was in the performance of his duties. . . . Now, from the evidence you’ve heard, you should consider whether the defendant obstructed, resisted, hindered a peace officer. In addition, you must then consider whether the defendant intended to interfere with the performance of the officer’s duty. Accidental or inadvertent interference is not enough. You should consider the defendant’s intention whether the defendant’s intention was to get a better view to permit him to videotape the incident and whether he was far enough away so as to not disturb the evidence, and whether, from all the evidence, it was his intent to hinder, obstruct, or resist a peace officer in the performance of his duties. The purpose of the statute, which had its origin in the common law, is to enforce orderly behavior in the important mission of preserving the peace, and any act that is intended to thwart the purpose is violative of the statute. The defendant, however, must have acted with the intent to interfere with the performance of the officer’s duties.” (Emphasis added.)

“It is, of course, constitutionally axiomatic that the jury be instructed on the essential elements of the crime charged.” State v. Williamson, 206 Conn. 685, 708, 539 A.2d 561 (1988). When reviewing a claim involving jury instructions that implicate a defendant’s constitutional right, “ ‘[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled.’ State v. Sinclair, [197 Conn. 574, 584, 500 A.2d 539 (1985)].” State v. Townsend, 206 Conn. 621, 626, 539 A.2d 114 (1988).

Before the state can obtain a conviction for interference with an officer, one of the essential elements it must prove beyond a reasonable doubt is that the defendant’s interference was intentional. State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). “A person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such a result or to engage in such conduct . . . .’’General Statutes § 53a-3 (11).

In the present case, both parties have directed our attention to State v. Wilson, 17 Conn. App. 104, 550 A.2d 643, cert. denied, 210 Conn. 803, 553 A.2d 616 (1988). In that case, the defendant was charged with the same crime and we concluded that the jury charge on intent was not constitutionally infirm. The state claims that the charge in the present case was nearly identical to that given in Wilson. The defendant, on the other hand, contends that although portions of the charge in this case are identical to that given in Wilson, this charge contained ambiguous remarks that could have misled the jury and included no general instructions on intent.

In the past, this court has ruled favorably on jury instructions on the charge of interfering with an officer only when the court has specified that intent is an essential element of the crime, or when it has given the definition of general intent as found in General Statutes § 53a-3 (11); see State v. Wilson, supra; see also State v. Moore, 23 Conn. App. 479, 482-83, 581 A.2d 1071 (1990). In the present case, the court neither instructed the jury that intent is an essential element of the crime of interfering with an officer, nor informed it of the statutory definition of intent.

To require reversal, an error in the court’s charge to the jury must be harmful to the appellant. State v. Concaugh, 170 Conn. 95, 100, 365 A.2d 395 (1976). Despite the deficiency of the instructions in the present case, we conclude that any error in the court’s charge was harmless because the charge given presented the case to the jury more favorably to the defendant than the charge to which he was entitled.

We have previously stated that it was the legislature’s intention to prohibit any act that amounts to meddling in or hampering the activities of an officer in the performance of his duties. State v. Beckenbach, 1 Conn. App. 669, 679, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985). In addition, General Statutes § 53a-3 (11) indicates that a defendant’s intent is sufficient if it is his conscious objective to cause a specific result, or to engage consciously in conduct that results in the accomplishment of the prohibited act.

Case law and § 53a-3 (11) indicate that the defendant was entitled to a charge that he could be found guilty if he either (1) intentionally moved into the immediate scene of the accident to obtain a better view after having been warned not to enter that area, or (2) moved into the forbidden area with the specific intention to hinder, obstruct or resist the officer. The charge that was actually given, however, could have led the jurors to conclude that moving in for a better picture alone was insufficient grounds upon which to convict the defendant. The jury reasonably could have concluded that it was also necessary to find that the defendant actually intended to interfere with the officer in order to convict. Despite this faulty, more favorable charge, the jury still rendered a guilty verdict. We see no reason to search for extravagant protection against errors that are obviously not prejudicial and that the defendant himself appears to have disregarded at trial. State v. Kurvin, 186 Conn. 555, 564, 442 A.2d 1327 (1982).

II

The defendant next claims that the trial court improperly denied his motion for a continuance. We disagree.

The facts that are relevant to the resolution of this issue are as follows. Two days before the trial commenced, the state’s attorney learned that Vandersloot had interacted with the defendant at the scene of the accident. The state then added Vandersloot’s name to the list of witnesses and forwarded Vandersloot’s one page report to defense counsel.

On the opening day of trial, the defendant made a motion in limine to preclude Vandersloot’s testimony and to exclude from evidence his written report, claiming surprise and prejudice. The court prohibited only the introduction of Vandersloot’s written statement and advised the defendant, who had received the information on Thursday, March 22,1990, that he would not be called upon to go forward with his case until Tuesday, March 27, and that he could recall Vandersloot later in the trial if he felt it necessary. The case went to trial on Friday, March 23, and Vandersloot testified over the defendant’s objection. The defendant cross-examined Vandersloot and never recalled him.

“ ‘[T]he decision to grant or deny a continuance lies within the discretion of the trial court. . . . Our inquiry on appeal is limited to whether the trial court abused its broad discretion. . . . “It must be shown that the trial judge acted arbitrarily and substantially impaired the defendant’s ability to defend himself, before an appellate court will conclude that the trial judge abused his discretion.” . . . ’ ” (Citations omitted.) State v. Marra, 195 Conn. 421, 436-38, 489 A.2d 350 (1986).

The court considered the defendant’s request and delayed the proceedings for the period of time that it deemed appropriate under the circumstances. On the basis of the facts presented here, we cannot conclude that the trial court abused its discretion by refusing to delay the trial further, nor can we see how the defendant was harmed by the way in which the court responded to his request.

Ill

The defendant next claims that the jury’s verdict was contrary to law. He asserts that he could not have violated General Statutes § 53a-167a because fire personnel arrived at the scene before Salvatore, and, thus, the ranking fire officer was in charge of the scene by reason of the provisions of § 7-313e. He asserts that because no evidence was produced at trial indicating that Salvatore was acting under the direction of fire personnel that the state failed to prove that Salvatore was acting in the performance of his duties. This argument is without merit.

Nothing in the plain and unambiguous language of § 53a-167a indicates that criminal behavior attaches only if the officer who is interfered with is the officer in charge, or that the duties interfered with must have been performed at the explicit direction of the officer in charge. The plain and simple fact is that Salvatore testified that it was his duty to assist at the scene of a fatal accident and that the defendant interfered with these duties. Police officers are not divested of authority because they are acting with fire personnel at an emergency site. Accordingly, we conclude that the jury’s verdict was not contrary to law.

IV

The defendant next claims that the trial court improperly refused to charge the jury on the effect of General Statutes §§ 7-313b and 7-313e. In light of our conclusion that these sections do not apply to the charge of interference with an officer in violation of § 53a-167a, we decline to review this claim further.

V

The defendant next claims that he was denied a fair trial by the prejudicial closing remarks of the prosecutor. The defendant did not object to the prosecutor’s closing remarks at trial or seek a curative instruction. He now seeks review under the bypass rule of State v. Evans, supra, and State v. Golding, supra. Correctly identified, however, this unpreserved claim of prosecutorial misconduct is merely masquerading as a constitutional claim and therefore must be summarily dismissed.

“While we do not deny that prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself ... we have long held that Evans review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. . . . Although certain remarks made by the prosecutor, from hindsight, may be deemed imprudent, such isolated and brief episodes as occurred here fail to implicate the denial of the defendant’s constitutional right to due process.” (Citations omitted.) State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990). The defendant bears the burden of “demonstrating that his claim is indeed a violation of a fundamental constitutional right.” State v. Golding, supra, 240. We conclude that, under the circumstances of this case, the prosecutor’s remarks did not rise to the level of egregious misconduct that would implicate the defendant’s constitutional right to due process.

VI

The defendant’s final claim is that the trial court improperly allowed Vandersloot to testify at trial, asserting that this testimony was irrelevant and prejudicial. We disagree.

A trial court has broad discretion in determining the relevancy of evidence; State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); and its ruling will be disturbed only upon a showing of a clear abuse of discretion. State v. Fritz, 204 Conn. 156, 167-68, 527 A.2d 1157 (1987). “ ‘Evidence is relevant only when it tends to establish the existence of a material fact or to corroborate other direct evidence in the case.’ ” State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Piskorski, 177 Conn. 677, 695, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979).

Our review of the record indicates that the trial court properly admitted Yandersloot’s testimony for the limited purpose of corroborating Salvatore’s testimony and to substantiate what Salvatore saw and testified to. We conclude that the trial court did not abuse its discretion in allowing Vandersloot to testify.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-167a provides: “INTERFERING WITH AN OFFICER: class A misdemeanor, (a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.
      “(b) Interfering with an officer is a class A misdemeanor.”

       The defendant’s contention that the court’s instructions failed to adequately inform the jury of the essential elements of the crime charged raises the possibility of a due process violation that affected the fairness of the trial. The review of unpreserved constitutional claims on appeal has been limited because “ ‘[d]ue process is not to be regarded as a giant constitutional vacuum cleaner which sucks up any claims of error which may occur to a party upon microscopic examination of the trial record.’ ” State v. McMurray, 217 Conn. 243, 253, 585 A.2d 677 (1991).

       General Statutes § 7-313e provides: “authority of fire OFFICER DURING EMERGENCY. Notwithstanding any provision in the general statutes or a municipal ordinance to the contrary, the fire chief of the municipality, or any member serving in the capacity of fire officer-in-charge, shall, when any fire department or company is responding to or operating at a fire, service call, or other emergency, within such municipality, have the authority to: (a) Control and direct emergency activities at such scene; (b) order any person to leave any building or place in the vicinity of such fire for the purpose of protecting such person from injury; (c) blockade any public highway, street, or private right-of-way temporarily while at such scene; (d) at any time of the day or night, enter any building, including a private dwelling, or upon any premises where a fire is in progress or near the scene of any fire, or where there is reasonable cause to believe a fire is in progress, for the purpose of extinguishing the fire or preventing its spread; (e) inspect for the purposes of preventing fires and preplanning the control of fire all buildings, structures or other places in their fire district, except the interior of private dwellings, where any combustible material, including but not limited to waste paper, rags, shavings, waste, leather, rubber, crates, boxes, barrels or rubbish, that is or may become dangerous as a fire menace to such buildings, structures or other places has been allowed to accumulate or where such chief or his designated representative has reason to believe that such material has accumulated or is liable to be accumulated; (f) order disengagement or discouplement of any convoy, caravan or train of vehicles, craft or railway cars for the purpose of extinguishing a fire or preventing its spread; and (g) take command of any industrial fire brigade or fire chief when such fire company or department has been called to such industry.”

       General Statutes § 7-313b provides: “authority op fire department OFFICER TO ORDER removal OF PERSONS. The officer of a fire company or a fire department in charge of directing the activities at a fire or other emergency to which his company or department responds shall have the authority to order any person to leave any building or place in the vicinity of such fire or emergency for the purpose of protecting such person from injury. Any person, upon being so ordered, who wilfully refuses to leave the vicinity of a fire or other emergency situation shall be fined not more than fifty dollars or imprisoned not more than seven days or both. The provisions of this section shall not apply to any person who has been issued a press card by the state police.”

       A representative example of the three passages from the prosecutor’s closing argument that the defendant now objects to is as follows: “This guy wants to argue about the first amendment, the fourteenth amendment. He wants to argue these things while a man is dying, while the police are trying to control hundreds of cars. There’s no testimony to that effect. I don’t know how many cars, but certainly a traffic jam. And this guy wants to talk about amendments, after he’s already gotten good shots.”
      It is imperative that we point out that it is not the prosecutor’s qualifying language that saves his argument, but the-context of the argument as a whole. The privilege afforded to counsel in addressing the jury must never be used as a license to comment upon or draw an inference from facts not in evidence, or present matters to the jury that they have no right to consider. State v. Falcone, 191 Conn. 12, 22, 463 A.2d 558 (1983). It is a prosecutor’s “duty . . . to see that justice is done and to refrain from improper methods calculated to produce prejudice and wrongful decisions by the jury.” State v. Malley, 167 Conn. 379, 389, 355 A.2d 292 (1974).


text:
    Donald J. Griggs v. B and G Land, Inc., et al.
    (9290)
    Spallone, Landau and Cretella, Js.
    Argued January 10
    decision released May 14, 1991

      Gary J. C. Woodfield, for the appellant (plaintiff).

      Martin M. Rizzi, for the appellee (defendant Charles G. Karanian).
   Per Curiam.

The plaintiff, Donald J. Griggs, appeals from the judgment of the trial court granting the defendant Charles G. Karanian’s motion for summary-judgment.

The plaintiff filed a complaint against four defendants, B & G Land, Inc., Bradley Chevrolet, Inc., Charles G. Karanian, and Allen W. Bradley on December 13,1988. The defendants were represented by one attorney who filed an appearance on January 17,1989. An answer, including two special defenses, was filed on February 2, 1989. On May 18, 1989, the plaintiff filed a reply to the defendants’ special defenses. The plaintiff also filed a withdrawal as to all of the defendants except Karanian. On June 29,1989, Karanian filed a request for permission to amend his answer and filed a third special defense asserting that the plaintiff’s release of the other parties extinguished any underlying debt for which the defendant may have been responsible as guarantor. The plaintiff did not object to this request. On May 4, 1990, Karanian filed a motion for summary judgment based on his third special defense. The plaintiff filed an opposition to the defendant’s motion for summary judgment and submitted his own motion for summary judgment on May 23,1990, claiming that his release of the other defendants did not extinguish Karanian’s obligation. The court granted the defendant’s motion for summary judgment on June 4, 1990. A review of the record discloses that the plaintiff never filed a reply to Karanian’s third special defense.

“A motion for summary judgment may be filed by any party at any time, addressed to the claim or counterclaim, after the pleadings are closed as between the parties to the motion. Practice Book § 379.” (Emphasis added.) Esposito v. Wethered, 4 Conn. App. 641, 644, 496 A.2d 222 (1985). When a defendant raises a special defense, the plaintiffs reply to the special defense closes the pleadings. Practice Book § 112; Doublewal Corporation v. Toffolon, 195 Conn. 384, 387 n.2, 488 A.2d 444 (1985); Krupa v. Farmington River Power Co., 147 Conn. 153, 155, 157 A.2d 914 (1959), cert. denied, 364 U.S. 506, 81 S. Ct. 281, 5 L. Ed. 2d 258 (1960). In this case, summary judgment was rendered in favor of the defendant before the plaintiff filed a reply to the defendant’s third special defense. The pleadings, therefore, were not closed and the court improperly granted the defendant’s motion for summary judgment.

The judgment is reversed and the case is remanded with direction that the pleadings be closed forthwith.

       This case is distinguishable from Avis Rent-A-Car System, Inc. v. Crown High Corporation, 165 Conn. 608, 345 A.2d 1 (1973), and Brookfield w. Candlewood Shores Estates, Inc., 201 Conn. 1, 513 A.2d 1218 (1986), in which, although the pleadings were not closed when the motions for summary judgment were filed, the pleadings were closed when the judgment was rendered.