author: Foti, J.

text:
    Barbara Ann Berg v. Kenneth W. Berg
    (9314)
    Dupont, C. J., Foti and Heiman, Js.
    Argued February 6
    decision released April 30, 1991

      David N. Feliu, with whom were V. Michael Simko, Jr., and, on the brief, Henry Elstein, for the appellant (plaintiff).

      Richard G. Kent, for the appellee (defendant).
   Foti, J.

The plaintiff appeals from the postdissolution judgment of the trial court denying her motion to modify periodic alimony. The plaintiff claims that the trial court improperly concluded that the portion of the dissolution judgment requiring her to pay household expenses for the jointly held property was an order made in relation to a property assignment. The dispositive issue is whether this order was nonmodifiable as part of a property assignment made pursuant to General Statutes § -ÜGb-Sl or modifiable as a periodic payment of permanent alimony pursuant to General Statutes § 46b-86 (a).

The parties’ marriage of twenty-six years was dissolved, after a trial, on October 26, 1988. Four of the parties’ five children still lived at home at the time of the judgment. Custody of the two minor children, aged fifteen and thirteen, was awarded to the plaintiff. The parties’ largest asset was their marital residence, which required mortgage payments of approximately $840 per week. The plaintiff was awarded $880 per week as periodic alimony to be reduced to $350 per week upon the sale of the house, continuing for twelve years from the date of the memorandum of decision. The defendant was also ordered to pay $75 per week for the support of each minor child.

On December 1,1988, the court, Mihalakos, J., modified the alimony from $880 to $845 per week and on December 14, 1989, the court, Coceo, J., modified the order to $350 per week. On March 16,1990, the court, Bassick, J., ordered an increase in periodic alimony to $357 per week.

On April 5,1990, the plaintiff filed her motion seeking a modification of “the above described orders for the payment of alimony,” and an order that “upon the sale of the family residence, the defendant be required to pay the plaintiff those household expenses which have been or which may hereafter be paid or incurred by the plaintiff and which equal the difference between the sum of $880 per week and the amount of periodic alimony actually paid by the defendant as of said time.” The motion also noted that at other times when the court ordered a modification of the original periodic alimony of $880 per week, there was no corresponding requirement that the defendant be obligated to pay or assume a proportionate burden toward the household expense; the plaintiff alleged that the orders entered at the time of dissolution were made in anticipation that she would be able to pay all household expenses from the periodic alimony of $880 per week.

The court, Gordon, J., denied the motion because the plaintiff “in her motion has failed to allege a substantial change in circumstances which has arisen since the last order of modification in December 1989” and because the “financial obligations imposed on the plaintiff were made in relation to a property assignment

Although a trial court has no jurisdiction to alter the terms of that portion of a dissolution judgment providing for the assignment of property of one party to the other party under General Statutes § 46b-81; Bunche v. Bunche, 180 Conn. 285, 289, 429 A.2d 874 (1980); Viglione v. Viglione, 171 Conn. 213, 215, 368 A.2d 202 (1976); it may modify a portion of a decree pursuant to General Statutes § 46b-86 (a) upon the showing of a substantial change in the circumstances of either party. Ammirata v. Ammirata, 5 Conn. App. 198, 200, 497 A.2d 768 (1985). Although an analysis of the structure of the dissolution order may be highly instructive in determining whether the division of marital property is considered lump sum alimony pursuant to General Statutes § 46b-82 or a property assignment pursuant to General Statutes § 46b-81, the difference between the two can be seen in their purposes. Blake v. Blake, 211 Conn. 485, 497, 560 A.2d 396 (1989). The purpose of property assignment is to divide equitably the ownership of the parties’ property; McPhee v. McPhee, 186 Conn. 167, 170, 440 A.2d 274 (1982); while periodic and lump sum alimony is based primarily on a continuing duty to support. Hotkowski v. Hotkowski, 165 Conn. 167, 170, 328 A.2d 674 (1973).

The order dealing with household costs and expense obligations cannot be considered part of the equitable division of the ownership of the parties’ property. It is a more reasonable construction of the memorandum of decision to conclude that periodic alimony payments of $880 per week were related to the fact that the plaintiff would be incurring as her sole obligation, as a part of the cost of household maintenance, a mortgage payment of $840 per week. The payment of household expenses relates to support rather than to the equitable division of that property.

We conclude, therefore, that the court did not lack jurisdiction to decide the motion because the motion did not seek the modification of a property assignment.

Although the plaintiff did not specifically allege that a substantial change in circumstances had arisen since the last modification, her motion contained factual allegations that may have been sufficient to form the basis of that claim. Although § 46b-86 (a) requires a showing of a substantial change in circumstances, it does not require that those specific words be used in a pleading seeking periodic alimony. The court, therefore, could have determined, after a hearing on the motion, that the facts proven constituted a substantial change in circumstances.

The judgment is reversed and the case is remanded for further proceedings on the plaintiffs motion for modification.

In this opinion the other judges concurred.

       General Statutes § 46b-81 provides in relevant part: “(a) At the time of entering a decree annulling or dissolving a marriage or for legal separation pursuant to a complaint under section 46b-45, the superior court may assign to either the husband or wife all or any part of the estate of the other. . . .
      “(c) In fixing the nature and value of the property, if any, to be assigned, the court, after hearing the witnesses, if any, of each party, except as provided in subsection (a) of section 46b-51, shall consider the length of the marriage, the causes for the annulment, dissolution of the marriage or legal separation, the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes (Rev. to 1987) § 46b-86 (a), as amended by Public Acts 1987, No. 87-104, provided: “Unless and to the extent that the decree precludes modification, any final order for the periodic payment of permanent alimony or support or an order for alimony or support pendente lite may at any time thereafter be continued, set aside, altered or modified by said court upon a showing of a substantial change in the circumstances of either party. After the date of judgment, modification may be made upon a showing of such substantial change of circumstances, whether or not such change of circumstances was contemplated at the time of dissolution. By written agreement, stipulation or by decision of the court, those items or circumstances that were contemplated and are not to be changed may be specified in the written agreement, stipulation or decision of the court. This section shall not apply to assignments under section 46b-81 or to any assignment of the estate or a portion thereof of one party to the other party under prior law.”

       The memorandum of decision provides in pertinent part: “A one-half interest in the family home known as 1 Joanne Lane, Weston, Connecticut, shall be conveyed to the defendant husband by the plaintiff wife. This is done at the plaintiffs request, so that he may share equally in the tax burden on the sale of the premises. The plaintiff shall reside in the house until the youngest child reaches the age of eighteen years, at which time the house shall be sold at a price to be agreed upon between the parties. The expenses of the sale, the first and second mortgages and the Corporate Maintenance claim shall be paid therefrom and the remaining monies shall be divided equally between the parties. From his share, the defendant shall repay the loan due the plaintiff’s mother in the amount of $28,000, and also the judgment lien in favor of the Peoples Bank in the present amount of $4,693.26. The plaintiff’s request for payment of $37,500, the amount drawn from the second mortgage, is denied inasmuch as the defendant used that money for family expenditures. The plaintiff shall be responsible for all costs and expenses of the house during the period of occupancy, including repairs up to $250. Repairs in excess of $250 shall be shared equally by the parties, that is, the excess over $250 shall be shared and both parties shall agree upon those repairs exceeding $250.”


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    Ann Hernandez et al. v. Monterey Village Associates Limited Partnership
    (8903)
    Daly, Norcott and Lavery, Js.

      Argued February 13
    decision released April 30, 1991

      Dennis J. O’Brien, with whom were Richard Tenebaum and, on the brief, Charles Pirro, for the appellants (plaintiffs).
   Daly, J.

The plaintiffs, three tenants residing in Monterey Village, an apartment complex in Norwalk, brought a class action under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes §§ 42-110a through 42-llOq, on behalf of some 150 tenant families residing at the complex. In their complaint, the plaintiffs alleged that the defendant owner and operator of the complex was attempting to evict them and members of their class by initiating more than twenty summary process actions on the basis of nonpayment of rent and termination of lease by lapse of time, in violation of state and local law, the United States Housing Act of 1937, and an agreement between the defendant and the housing authority of the city of Norwalk entered into pursuant to § 8 of the Moderate Rehabilitation Housing Assistance Payments Program, 42 U.S.C. § 1437f (e) (2). The trial court rendered judgment in accordance with a stipulation entered into by the parties on June 30, 1988.

Subsequently, the plaintiffs filed motions for attorney’s fees and costs, relying on General Statutes § 42-110g (d). The trial court denied the motions, holding that the plaintiffs were not entitled to an award of attorney’s fees because there was neither a contractual nor a statutory authorization for such an award. The court found that there was no contractual authorization for the award because the parties’ stipulation did not evince any agreement by the defendant to pay the plaintiffs’ attorney’s fees. The court then found that there was no statutory authorization for the award because a judgment on the merits following litigation of the issues is a necessary predicate to a court’s award of attorney’s fees pursuant to General Statutes § 42-1 lOg (d), and in this case there was only a stipulated judgment.

In Hernandez v. Monterey Village Associates Limited Partnership, 17 Conn. App. 421, 426, 553 A.2d 617 (1989) (Hernandez I), this court stated that, in the absence of some clear expression of legislative intent to the contrary, General Statutes § 42-110g (d) should not be interpreted to preclude plaintiffs who act in accord with the public interest by settling their cases from obtaining attorney’s fees and costs. Our conclusion that the trial court incorrectly interpreted General Statutes § 42-110g (d) did not, however, necessarily entitle the plaintiffs to attorney’s fees and costs. That determination was entrusted to the sound discretion of the trial court, and we remanded the case for further proceedings to determine whether the plaintiffs should receive attorney’s fees and costs and, if so, what amount they should receive.

An examination of the record indicates that, on remand, the trial court failed to conduct a hearing and to receive evidence to determine whether the plaintiffs were entitled to receive attorney’s fees and costs under General Statutes § 42-110g (d). Instead, the trial court denied relief because there was no contractual authorization in the settlement agreement without the required evidentiary hearing. For purposes of General Statutes § 42-1 lOg (d), the plaintiffs are entitled to an evidentiary hearing regarding attorney’s fees and costs.

The judgment denying the motion for attorney’s fees and costs is reversed and the case is remanded to the trial court to conduct an evidentiary hearing to determine whether the plaintiffs should receive attorney’s fees and costs and, if so, what amount they should receive.

In this opinion the other judges concurred.

       General Statutes § 42-110g (d) provides in pertinent part: “In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of the recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys’ fees.”

       In Ven Nguyen v. DaSilva, 10 Conn. App. 527, 523 A.2d 1369 (1987), the plaintiffs stipulated that their agreement was a full and final settlement of all claims, and expressly waived any claim for counsel fees. The stipulation of the plaintiffs in the present case neither contained any such agreement nor was there any waiver as in Ven Nguyen.

        Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974), sets forth the factors to be considered by the trial court if it determines that the plaintiffs are entitled to attorney’s fees and costs.


text:
    State of Connecticut v. Leonard Dedrick
    (8417)
    Daly, Norcott and Foti, Js.
    Argued February 15
    decision released April 30, 1991

      Stephen V. Moran, assistant public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and John Smriga scad Frederick W. Fawcett, assistant state’s attorneys, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of robbery in the first degree in violation of General Statutes § 53a-134 (a) (3), and of assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The defendant claims that the trial court improperly (1) denied his motion to strike certain testimony, and (2) failed to give the jury a requested lesser included offense instruction with respect to the charge of robbery in the first degree. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. On October 13,1988, at approximately 5:35 a.m., Gerald Grant left his home and went to a twenty-four hour convenience store to purchase cigarettes. After leaving the store he was approached by the defendant, who attempted to sell him a white substance contained in a small glass bottle. When Grant refused, three other individuals approached and grabbed and struck him, causing him to lose consciousness. As he regained consciousness, he was aware of someone going through his pockets. He was then thrown to the ground and kicked twice by the defendant. Someone other than the defendant told Grant to “give him the money and he’ll stop beating you.” Grant was then picked up and placed across a car, where the defendant put a knife to Grant’s throat and threatened to cut Grant’s throat if he did not give him money. Grant then reached into his pocket and gave the defendant between $260 and $270.

After being denied the use of the telephone at the store, Grant used a phone booth near the store to call 911 to summon the police. After their arrival, the police brought Grant to a street a few blocks away, where he identified the defendant.

The defendant challenges the court’s failure to strike Grant’s testimony because the police erased the tape of his emergency 911 call. The following facts are relevant to this claim. During the direct examination of Grant, the defendant, in the absence of the jury, requested that Grant’s testimony be stricken, citing State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988), aff'd, 212 Conn. 6, 562 A.2d 470 (1989), and representing that a 911 tape of Grant’s call to the police had been erased. The court denied the motion. Subsequently, during a hearing on a motion to suppress identification the issue again arose and the defendant asserted that he had subpoenaed the records of Grant’s calls to the police and had been informed that, as a matter of routine policy, the tape had been erased sixty days after the call. Without further offer, the defendant, again citing Williamson, moved to strike Grant’s testimony. The court informed the defendant’s counsel that a record had to be developed on which to predicate a ruling, and that oral statements of counsel did not constitute evidence. The issue was not raised again until after the verdict when, for the first time, the defendant filed a written motion to strike Grant’s testimony. A hearing was held and the defendant examined his first and only witness, Sergeant Robert Lomax, supervisor of the communications division of the Bridgeport police department. Lomax testified that the tape of the 911 call had been destroyed after sixty days, that normally such tapes are held for thirty to sixty days for purposes of inquiries and that then the tapes are reused. He did, however, have a copy of the complaint dispatch, which is a nonverbatim record of the Grant phone call. The transcription indicated that the victim had been robbed by five black males who were on the corner of Fifth Street and Stratford Avenue, that one was wearing a green army jacket, two had black jackets and one a gray hooded shirt. The complainant was to be met in front of Faces Cafe. The court denied the defendant’s motion to strike.

Although the record may be far from ideal, it is not so inadequate that we will not accept the review of this proffered issue.

The state concedes that the tape of the 911 emergency call constituted a “statement” within the definition provided by Practice Book § 749 (2). State v. Williamson, supra, 14 Conn. App. 112-13. The defendant concedes that the tape was not destroyed in bad faith, or by deliberate act done with intent to deprive the defense of information; see State v. Santangelo, 205 Conn. 578, 587, 534 A.2d 1175 (1987); but rather by intentional nonpreservation. See State v. Williamson, supra, 212 Conn. 16. Our Supreme Court has recently stated the law regarding such destruction. “ ‘[I]f a case involves intentional, but not bad faith, destruction of the statement of a state’s witness, an automatic sanction of striking that witness’ testimony is not required. . . .’ State v. Johnson, 214 Conn. 161, 168, 571 A.2d 79 (1990). Rather, under such circumstances, ‘it is appropriate that the court weigh “ ‘the culpability of the state for its failure to make disclosable material available on the one hand, against any resulting prejudice to the defendant on the other. . . . ’ ” This approach gives broad discretion to the trial court. . . . Where . . . the destruction of a witness’ statement, although not in bad faith, is deliberate, the state properly bears the burden of establishing harmlessness. . . . “[T]he proper harmless error inquiry is whether the result of the trial may have been different had the state not violated the rule.” . . .’ ” (Citations omitted.) State v. Belle, 215 Conn. 257, 268, 576 A.2d 139 (1990).

Our careful review of the record indicates that the state has sustained its burden of establishing harmlessness. On the particular circumstances of this case, because the defendant is not claiming that his ability to cross-examine Grant was affected by the tape’s destruction, there is no claimed violation of the confrontation clause of the sixth amendment, and, therefore, the state need not prove harmlessness beyond a reasonable doubt. See State v. Belle, supra, 271-72; State v. Johnson, supra, 173-74; see also In re Jesus C., 21 Conn. App. 645, 575 A.2d 1031 (1990). Although a violation of the defendant’s right to discovery did occur when the tape was destroyed, the impact of that violation was lessened due to the existence of the complaint report that was available to the defendant. The substance of the statements on the tape was the time of the incident, the number and the descriptions of the assailants, where Grant could meet the police and where the assailants could be found. This information is highly relevant to the issue of whether the defendant was among the assailants. That issue, however, was not in controversy at trial. The defendant himself established by testimony that he was present at the crime scene. The main issue contested at the trial was whether the defendant robbed Grant at knife point, or merely attempted to convince Grant to pay the other four assailants to stop the beating. The reconstructed information did not mention the location of the robbery but rather where Grant could be met by the police and where the five black males who robbed him were. The time of the incident and the description of the clothes worn by the assailants were not changed and were consistent with Grant’s trial testimony. The number of attackers reported was not truly consequential under the circumstances, because the defense was dependent on what happened factually and not on how many people were present and participating. The crucial question at trial was the role played by the defendant, not the number of people involved or the clothing worn by any individual. The record does not support a claim that the erased tape would have played any significant role in this trial. Both the testimony of Lomax and the transcription of the “911” call were available to the defendant at trial, and neither appears to have been of any substantive value to the defendant. The tape itself, therefore, could not be deemed to be of critical importance. Under the circumstances as described we conclude that the trial court did not abuse its broad discretion in refusing to strike the testimony of Grant.

The defendant also challenges the trial court’s refusal to instruct the jury, as requested, on robbery in the third degree as a lesser included offense of robbery in the first degree.

To be entitled to a charge on a lesser included offense, a defendant must show that he has complied with the four conditions stated in (State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980): “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Edwards, 214 Conn. 57, 62-63, 570 A.2d 193 (1990). The state claims that the defendant has not satisfied the first and fourth conditions of the Whistnant test.

The standards for the first prong of Whistnant were articulated by our Supreme Court in State v. McIntosh, 199 Conn. 155, 158-61, 506 A.2d 104 (1986). The requirement that the defendant request an appropriate instruction means that the request must be in compliance with Practice Book § 854, the pertinent portion of which states that requests “shall be in separate and numbered paragraphs, each containing a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply” (Emphasis added.) See State v. McIntosh, supra, 158-59.

In the present case, the defendant’s request to charge did not adequately comply with our rules of practice. It contained no facts at all, let alone “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ ” State v. Killenger, 193 Conn. 48, 57, 475 A.2d 276 (1984). Having so concluded, we need not consider the second, third or fourth prongs of the Whistnant test. The trial court properly refused to grant the defendant’s request to instruct the jury on the elements of robbery in the third degree, General Statutes § 53a-136, as a lesser included offense of the crime charged.

The judgment is affirmed.

In this opinion the other judges concurred.

        State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1988), decided April 12,1988, and affirmed subsequent to the completion of this trial, 212 Conn. 6, 562 A.2d 470 (1989).

       Practice Book § 749 (2) provides: “The term ‘statement’ as used in Sec. 748 means . . . (2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”


author: Per Curiam.

text:
    One Fawcett Place Limited Partnership v. Diamandis Communications, Inc.
    (8647)
    Daly, O’Connell and Cretella, Js.
    Argued September 27, 1990
    decision released April 30, 1991

      Marshall Goldberg, for the appellant (plaintiff).

      Linda Lederman, with whom was Stuart A. Epstein, for the appellee (defendant).
   Per Curiam.

The plaintiff appeals from the trial court’s denial of its application for a prejudgment remedy.

Our review of the record, transcripts, oral decision of the court and briefs clearly indicates that the trial court did not follow the definition of civil probable cause as set forth in Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 583, 376 A.2d 60 (1977), and Three S. Development Co. v. Santore, 193 Conn. 174, 175, 474 A.2d 795 (1984). That definition has not changed since our Supreme Court enunciated in Wall v. Toomey, 52 Conn. 35, 36 (1884), that civil probable cause constitutes “a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Emphasis in original.) “The purpose of a hearing is to satisfy the constitutional due process right that parties whose property rights are to be affected are entitled to be heard ‘at a meaningful time and in a meaningful manner.’ ” Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, supra. “The plaintiff does not have to establish that he will prevail, only that there is probable cause to sustain the validity of the claim.” Id., 584.

The transcript reveals that in several instances the court focused on the plaintiffs ultimate success in a trial on the merits. As set forth in Ledgebrook and Three S., whether the plaintiff will ultimately prevail after a full hearing is not an element of the legal definition of civil probable cause. The court need determine only whether there is probable cause that judgment will be rendered for the plaintiff.

The judgment is reversed and the case is remanded for a new hearing to determine whether a prejudgment remedy should be issued.


text:
    Edwin H. Hochberg et al. v. Zoning Commission of the Town of Washington et al.
    (8892)
    (8904)
    Daly, O’Connell and Cretella, Js.
    Argued September 24, 1990
    decision released April 30, 1991

      Thomas P. Byrne, for the appellant (named defendant).

      Robert P. Hanahan, for the appellant (defendant Woodland Associates, Inc.).

      John W. Pickard, for the appellees (plaintiffs).
   Daly, J.

The defendants appeal from the trial court’s judgment overruling the defendant commission’s issuance of a special permit to the defendant developer, Woodland Associates, Inc. The following facts are undisputed.

On November 13,1986, the developer applied to the commission for a special permit to construct seventy-four residential condominium units on Route 202 in the town of Washington. The matter was continued several times and the number of units requested was reduced to forty-seven. On March 23, 1987, the commission unanimously approved the construction of the forty-seven units subject to the developer’s obtaining approvals from the department of environmental protection, the department of public utility control, the department of health, and the inland wetlands conservation commission. The special permit application was granted also subject to certain conditions: (1) at least 5 percent of the units would be sold for less than $100,000 and at least another 10 percent would be sold for less than $125,000; (2) the deeds of these (15 percent) identified units would contain a restriction specifying these terms and be approved by the commission within sixty days; and (3) the zoning enforcement officer was to monitor these units during the next ten year period and sign off on any sale of the identified units to enforce compliance with these conditions. The commission stated that its goal was to provide a mix of housing types to meet the different needs and financial resources of those persons who live in or desire to live in Washington.

The plaintiffs were deemed to be aggrieved in Hochberg v. Zoning Commission, 19 Conn. App. 357, 561 A.2d 984 (1989), and appealed the action of the commission. The trial court sustained the plaintiffs’ appeal, holding that the commission acted illegally, arbitrarily and in abuse of its discretion in setting a ceiling price on 15 percent of the units. The trial court further found that the commission relied on insufficient evidence regarding the proper density of housing for the existing soil type and acted without prior approval from the health officer of the sewage and water supply systems. The defendants now appeal the trial court’s decision.

The defendants argue that the trial court improperly found that the commission had no authority to impose conditions on the granting of a special permit. The defendants assert that the trial court failed to recognize the commission’s authority to impose such conditions contained in General Statutes § 8-2. We disagree with the defendants and affirm the trial court’s decision on this issue. Because our decision on this issue is dispositive of the appeal, we need not address the defendants’ other claims.

A special permit allows an applicant to put his or her property to a use that is expressly permitted under the regulations. Beckish v. Planning & Zoning Commission, 162 Conn. 11, 15, 291 A.2d 208 (1971). “[T]he conditions under which a special [permit] is allowed must be found in the regulations and cannot be altered; and if a condition is imposed by a commission without being warranted by the regulations, it is void.” Id. Unless the commission has the authority under the Washington zoning regulations to impose the conditions it did, those conditions must fail.

The defendants argue that § 14.7 of the Washington zoning regulations provides the authority to impose such conditions as allowed by General Statutes § 8-2. Section 14.7 authorizes the general police powers of the commission. This authority “to ensure that structures and the uses of land are arranged in a manner that enhances the health, safety and general welfare” of town residents is not sufficiently specific to authorize special conditions as to the selling prices of units. Section 8-2, however, permits zoning commissions to enact “regulations . . . [that] encourage the development of housing opportunities for all citizens . . . . ” (Emphasis added.) The Washington zoning commission has not enacted such regulations that would authorize the special conditions imposed on the defendant developer. These conditions imposed by the commission without being warranted in the zoning regulations are void. See Beckish v. Planning & Zoning Commission, supra.

“The imposition of a void condition, however, does not necessarily render the whole decision illegal . . . . If the decision is otherwise supported by sufficient grounds as found by the [commission,] a modification of the decision may be decreed with a view toward ending further litigation.” Parish of St. Andrew’s Church v. Zoning Board of Appeals, 155 Conn. 350, 354-55, 232 A.2d 916 (1967).

The conditions imposed here concerning the sale prices, deed restrictions, the ten year period of enforcement, and monitoring were an integral and inseparable part of the commission’s approval of the special permit, and the commission’s decision is not supported by other sufficient grounds. The trial court, therefore, correctly overruled the commission’s issuance of the special permit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs Edwin H. and Diane E. Hochberg own property abutting that of Woodland Associates, Inc.

       The deed restriction on the units’ prices was to run for a ten year period and would be computed for future sales by considering the following factors: (1) the original purchase price; (2) any major improvements that could be substantiated; (3) an additional amount not to exceed the consumer price index of the United States Department of the Treasury; and (4) 2 percent of the original purchase price per year.

       Section 14.7 of the Washington zoning regulations provides in part: “In an endeavor to ensure that structures and the uses of land are arranged in a manner that enhances the health, safety and general welfare of the citizens of the Town of Washington, the Commission shall inspect and approve all site plans prior to issuance of a permit. The Commission shall determine that the proposed buildings or uses shall be of such character as to harmonize with the neighborhood, to accomplish a transition in character between areas of unlike character, to protect property values in the neighborhood, to preserve and protect natural resources and the appearances and beauty of the community and to avoid undue traffic congestion.”

       General Statutes § 8-2 provides in pertinent part: “All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or uses of land are permitted only after obtaining a special permit or special exception from a zoning commission, . . . subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values.” (Emphasis added.)


text:
    Baystate Moving Systems, Inc. v. Peter C. Bowman et al.
    (8961)
    Daly, O’Connell and Foti, Js.
    Argued December 13, 1990
    decision released May 7, 1991

      John J. Quinn, for the appellant (plaintiff).

      Paul T. Nowosadko, with whom were Louis B. Blumenfeld and, on the brief, Lorinda S. Coon, for the appellees (named defendant et al.).
   Foti, J.

The plaintiff intervenor in this personal injury action, Michael Dupont, appeals from the judgment in the amount of $10,500 that was rendered in his favor after a jury trial. The plaintiff claims that the trial court improperly (1) allowed the defendants to offer evidence of workers’ compensation benefits in violation of the collateral source rule, (2) did not permit the plaintiff to testify as a rebuttal witness to rehabilitate his own credibility, (3) did not permit Jonathan Reik to testify as a witness, and (4) charged the jury regarding the plaintiff’s duty to mitigate damages. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. The plaintiff Michael Dupont was employed by Baystate Moving Systems, Inc. (Baystate), as a packer. On September 14, 1984, the plaintiff was driving a truck owned by Baystate in the performance of his duties when the truck was struck from the rear by a vehicle operated by the defendant Garry S. Krutka. Krutka’s vehicle had been struck from behind by a pickup truck that was operated by the defendant Peter C. Bowman and owned by the defendant Peter E. Bowman. The plaintiff was injured in the accident and was treated by several physicians. The plaintiff never returned to work at Baystate, and made a claim for workers’ compensation benefits. The plaintiff received benefits totaling over $20,000.

Baystate commenced this action pursuant to General Statutes § 31-293 in August, 1986, to recover previous payments. Dupont intervened by motion and joined the action as a coplaintiff. In 1988, Baystate withdrew its complaint, and the plaintiff continued to litigate the matter. This case was tried in January and February, 1990, to a jury that returned verdicts on February 2, 1990. The jury found the issues for the defendant Garry Krutka, and for the plaintiff as against the defendants Peter C. Bowman and Peter E. Bowman. The jury found damages of $10,500. The court accepted the verdicts and judgment was rendered. The plaintiff appeals from the judgment in his favor against Peter C. Bowman and Peter E. Bowman.

The plaintiff’s first claim is that the trial court improperly permitted the defendants to introduce evidence of the plaintiff’s receipt of workers’ compensation benefits in violation of the collateral source rule. The plaintiff objected to the following question: “Also during the year 1985, did you receive benefits from workers’ compensation?” This question was asked during the defendants’ cross-examination of the plaintiff regarding his past financial condition. This line of questioning seems to have been calculated to educe testimony from the plaintiff that was inconsistent with statements he had made during direct examination, and thereby to impeach his credibility. The plaintiff argues that this question violated the collateral source rule even if it was offered to impeach his credibility rather than as substantive evidence of a collateral source.

“ 'The basis of our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source.’ ” Rametta v. Stella, 214 Conn. 484, 489-90, 527 A.2d 978 (1990), quoting United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 101-102, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972); Regan v. New York & New England R.R. Co., 60 Conn. 124, 130, 22 A. 503 (1891).

Ordinarily, the fact that the plaintiff has received benefits from a third party would be irrelevant and inadmissible under the collateral source rule. Acampora v. Ledewitz, 159 Conn. 377, 384, 269 A.2d 288 (1970). Here, however, testimony that would otherwise have been irrelevant and inadmissible under the collateral source rule became relevant because of the plaintiff’s prior statements. The plaintiff testified on direct examination concerning the gravity of his financial situation in 1985. Evidence that he had received substantial workers’ compensation benefits during this period is certainly relevant to the issue of the plaintiff’s credibility.

Our Supreme Court has held that when evidence of income from a collateral source is relevant to the issue of the credibility of a witness it shall be admissible for that purpose. Id. Indeed, that court stated that “it was reversible error not to have allowed the defendants to have pursued the matter on cross-examination.” Id.

The plaintiff argues that this case can be distinguished from Acampora because the controverted testimony in this case was educed from the plaintiff, whereas in Acampora it was educed from a third party witness. We see no reason why this difference should change the outcome, and find the plaintiff’s argument unpersuasive.

The plaintiff further argues that the trial court did not properly balance the probative value of the testimony regarding the issue of credibility against the potential prejudice that could arise from improper use of the testimony by the jury. The plaintiff maintains that if the court had engaged in the proper balancing of these concerns the evidence would not have been admitted. We disagree.

“As to the prejudicial effect of the testimony, the trial judge, in the exercise of judicial discretion, must decide whether the probative value of the testimony outweighs the prejudice likely to result from its admission. State v. Ralls, 167 Conn. 408, 417, 356 A.2d 147 [1974]; State v. Moynahan, 164 Conn. 560, 597, 325 A.2d 199[, cert. denied, 414 U.S. 976, 94 S. Ct. 291, 38 L. Ed. 2d 219 (1973)].” State v. Martin, 170 Conn. 161, 166, 365 A.2d 104 (1976). The determination of relevance, moreover, must be made according to reason and judicial experience. Robinson v. Faulkner, 163 Conn. 365, 371, 306 A.2d 857 (1972). This determination requires the exercise of the court’s discretion. State v. Blyden, 165 Conn. 522, 531, 338 A.2d 484 (1973).

The principles by which we judge the propriety of the trial court’s ruling on the relevance of evidence educed on cross-examination are well settled. The scope of cross-examination is a matter properly left to the sound discretion of the trial court. State v. Ghere, 201 Conn. 289, 303, 513 A.2d 1226 (1986); State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980). “ 'Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” State v. Ghere, supra, quoting State v. Briggs, supra.

Applying this limited standard of review to this case in light of our Supreme Court’s holding in Acampora, we do not find that the trial court abused its discretion in any way by admitting evidence of the plaintiff’s workers’ compensation benefits to impeach his credibility.

The plaintiff’s second claim is that the trial court improperly denied him the opportunity to be recalled as a witness to rebut the defendants’ attack on his credibility. The plaintiff argues that after the defendants’ cross-examination elicited evidence of workers’ compensation benefits that impeached his credibility, he should have been permitted to be recalled as a witness.

After the defendants’ cross-examination, the plaintiff was given a full and fair opportunity for redirect examination to probe the issues raised on cross-examination. The plaintiff conducted brief redirect examination that did not touch on the issue of the workers’ compensation benefits. Later, the court denied the plaintiff’s request to be recalled as a witness. It was the denial of this request to be recalled that the plaintiff challenges.

“The trial court has broad discretion in determining whether to permit a witness to be recalled.” State v. Arroyo, 13 Conn. App. 687, 692, 539 A.2d 581, cert. denied, 208 Conn. 805, 545 A.2d 1103 (1988); see State v. Vandemark, 77 Conn. 201, 206, 58 A. 715 (1904). In this case, the trial court chose not to permit the plaintiff to be recalled to address the issue of workers’ compensation benefits after the plaintiff neglected to address this issue on redirect examination. We cannot say that the plaintiff has shown that the trial court abused its discretion in refusing to permit him to be recalled to offer direct testimony to rehabilitate his credibility after he had chosen not to address that issue during prior redirect examination.

The plaintiff further argues that he should have been permitted to testify as a rebuttal witness to rehabilitate his credibility. We disagree.

“The trial court is vested with considerable discretion in the matter of rebuttal evidence.” State v. Wood, 208 Conn. 125, 139, 545 A.2d 1026, cert. denied, 488 U.S. 895, 109 S. Ct. 235, 102 L. Ed. 2d 225 (1988); State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982). Ideally, rebuttal evidence refutes evidence presented as part of the defendant’s case-in-chief. See State v. Wood, supra; DiMaio v. Panico, 115 Conn. 295, 298-99, 161 A. 238 (1932); Hathaway v. Hemingway, 20 Conn. 191, 195 (1850).

We cannot say that the trial court abused its discretion in this case by limiting the plaintiff’s rebuttal testimony to issues raised in the defendants’ case-in-chief when the plaintiff had a full and fair opportunity to address these issues during redirect examination.

The plaintiffs next claim is that the trial court improperly excluded the testimony of Jonathan Reik. The plaintiff offered Reik’s testimony to challenge the evidence of workers’ compensation benefits and thereby to rehabilitate the plaintiff’s credibility. The plaintiff argues that the trial court’s refusal to admit Reik’s testimony constituted an abuse of discretion sufficient to require a new trial. We do not agree.

The plaintiff must show an abuse of discretion and resulting prejudice in order to succeed on this claim, just as he did with the other issues of relevancy and admissibility that he has raised in this appeal. See State v. Quinones, 21 Conn. App. 506, 513-14, 574 A.2d 1308 (1990). The plaintiff seeks to make this showing by asserting that the defendants raised the issue of workers’ compensation benefits during cross-examination and arguing that, because the issue was raised, the plaintiff was entitled to address it through Reik’s testimony.

Although the first part of the plaintiff’s argument is correct, his conclusion does not persuade us. The defendants did raise the issue of workers’ compensation benefits during cross-examination. This gave the plaintiff the right to develop the issue further on redirect examination of the plaintiff. It did not give the plaintiff an unqualified right to call Reik to testify regarding this issue. Reik’s testimony was extrinsic evidence of a collateral issue and was properly excluded by the trial court.

The defendants offered evidence of the plaintiff’s receipt of workers’ compensation benefits solely for the purpose of impeaching the plaintiff’s credibility. The plaintiff had the right and the opportunity to address this issue through redirect examination. Because credibility is a collateral matter, the trial court did not have to admit Reik’s testimony. See State v. Wilson, 158 Conn. 321, 324, 260 A.2d 571 (1969); Barlow Bros. Co. v. Parsons, 73 Conn. 696, 702, 49 A. 205 (1901).

The plaintiffs final claim is that the trial court improperly instructed the jury regarding his duty to mitigate damages. The plaintiff alleges that the trial court’s charge to the jury on this issue did not comply with the requirements outlined in Preston v. Keith, 20 Conn. App. 656, 662-63, 570 A.2d 214 (1990), rev’d in part, 217 Conn. 12, 584 A.2d 439 (1991). The plaintiff argues that he was prejudiced by the faulty instructions on two issues. Specifically, the plaintiff cites the trial court’s omission of the issues of proximate cause and burden of proof from its charge on mitigation of damages, and claims that these omissions adversely affected the jury’s determination of the length of his disability and the amount of medical damages for which the defendants were liable. He contends, therefore, that a new hearing on the issue of damages is necessary.

Although we agree that the trial court’s charge on mitigation of damages was inadequate, we need not remand for a new hearing because any error in the trial court’s charge was harmless. Any flaw in the jury instructions could not have prejudiced the plaintiff because the specific issues involved were properly issues of proximate cause for the plaintiff to prove, rather than true issues of mitigation of damages.

The only issues identified by either the parties or the trial court as related to the plaintiffs duty to mitigate damages are (1) what portion of the plaintiff’s unemployment is attributable to his disability, and (2) whether the defendants should be liable for the plaintiff’s chiropractor bills. These are issues of damages for the plaintiff to prove in his prima facie case, rather than issues by which the defendants seek exoneration from responsibility resulting from the plaintiff’s failure to act in good faith to avoid aggravation of the original injury. Cf. Morro v. Brockett, 109 Conn. 87, 93-94, 145 A. 659 (1929); Preston v. Keith, supra, 20 Conn. App. 662.

“It is axiomatic that the initial burden of proving and establishing that the defendant’s negligence was the proximate cause of claimed injuries lies with the plaintiff.” Preston v. Keith, supra, 20 Conn. App. 664; see Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987). In Preston v. Keith, supra, 20 Conn. App. 664, this court held that the burden of proof shifted to the defendant when the defendant claimed that “the injured party failed to take reasonable action to lessen the damages . . . .” In this case, however, although the trial court referred to certain issues during its charge on the plaintiffs duty to mitigate damages, these issues did not involve allegations that the plaintiff failed to exercise good faith in reducing damages. Compare Preston v. Keith, supra, 20 Conn. App. 659 (the plaintiff failed to comply with treating therapist’s recommendations). Both the issue of the duration of the plaintiffs disability and the issue of the defendants’ liability for the plaintiffs chiropractor bills address the limits of the causation element of the plaintiff’s prima facie case.

The trial court’s charge, therefore, although flawed in its explanation of the plaintiffs duty to mitigate damages, did not prejudice the plaintiff because none of the issues was properly encompassed by that duty.

The judgment is affirmed.

In this opinion the other judges concurred.

       The following excerpts from the transcript contain the plaintiffs testimony regarding his financial condition in 1985 that was elicited on direct examination:
      “[The Plaintiff] A. May 8th—I believe that was the last time I saw Miller. He had suggested a pain clinic in Holyoke, Providence Hospital. He had exhausted everything to do. Except medication, continue on the home traction unit. In July I saw Dr. Bye, who was the one who performed the myelogram. He told me, T tried everything I can.’ He suggested Spaulding Pain Clinic in Boston.
      “[Plaintiff’s Counsel] Q. Did you attend either Spaulding Pain Clinic or the Providence Hospital Pain Clinic?
      “A. No. I couldn’t afford it.
      “Q. You had no money?
      “A. I was broke.
      “Q. What did you do?
      “A. 1983, my wife had become a realtor. There was no money coming in. I was not working. I was staying home with the kids while she was starting her own business.
      “Q. Are there any changes in your family structure during this time period of ‘84, ‘85?
      “A. Yes. It was a very stressful, rough time for us. We were broke and she tried to go out on her own.
      “Q. And you are not working?
      “A. No, sir.
      “Q. And your wife has become a real estate broker?

        “A. Correct.
      “Q. Did this change your life in any way?
      “A. Like I say, I had no money left. When she opened the doors in April

       Upon its review of Preston v. Keith, 20 Conn. App. 656, 570 A.2d 214 (1990), our Supreme Court decided that the trial court was not required to instruct the jury on the relationship between proximate cause and mitigation of damages. Preston v. Keith, 217 Conn. 12, 584 A.2d 439 (1991). This holding reversed the precedent relied on by the plaintiff, and requires him to show that the trial court abused its discretion in omitting a proximate cause on instruction from the charge on the plaintiff’s duty to mitigate damages.

       The pertinent part of the trial court’s instruction regarding the duty to mitigate damages is as follows: “One who is injured in an accident has a duty to mitigate damages. In other words, one who claims to have been injured by the negligence of another must use reasonable care to promote recovery and prevent any unnecessary increase of damages, including medical expenses and loss of earnings.
      “This rule is one of good faith and reasonable conduct. The requirement is met when the plaintiff does what a reasonably prudent person would be expected to do under the same circumstances. The test of good faith and reasonable conduct must be applied under all of the conditions surrounding the plaintiff at that time. That is the rule.
      “If you find that the plaintiff in this action acted in good faith, resorted to such means and adopted such methods as were reasonably within his reach in order to make his damages as small as possible, then you won’t have to consider the question of whether the damages should be dismissed.
      “If on the other hand you find he fell short of that, then he did not act in good faith and did not resort to such means and adopt such methods reasonably within reach to make his damages as small as possible. Then you are to take off the damages. Otherwise, you would award to him such sum you think fairly represents the amount to which his damage was increased by his failure of his duty in this respect.
      “There is, as I recall, and again it’s for you to recall, there is evidence from which you might [conclude] if you accept that evidence that the plaintiff could have resumed employment at an earlier date than he did. I believe that testimony came in with Dr. Dowling.”


text:
    State of Connecticut v. Jennifer Clarke
    (9151)
    Dupont, C. J., Noecott and Foti, Js.
    Argued March 28
    decision released May 7, 1991

      Elizabeth A. Gallagher, with whom, on the brief, was William F. Gallagher, for the appellant (defendant).

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and John O’Reilly, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant appeals from the judgment of conviction following a jury trial of criminal trespass in the second degree in violation of General Statutes § 53a-108.(a), and following a court trial of creating a public disturbance in violation of General Statutes § 53a-181a. These charges arose out of her actions during a demonstration at an abortion clinic.

The essence of the defendant’s claims is that the trial court improperly prevented her from presenting evidence relating to the defense of necessity and the defense of justification.

The defendant’s first claim is controlled by our recent case of State v. Anthony, 24 Conn. App. 195, 588 A.2d 214 (1991). Because the harm sought to be prevented is not recognized as an injury under the law, the defense of necessity is insufficient as a matter of law and the court properly refused to allow the defendant to raise it. See id., 209.

In Anthony, we also determined that justification is not a defense to an infraction. Because creating a public disturbance is an infraction, the defendant had no right to claim justification as a defense to it. Id., 210.

What remains in the present case is the defendant’s claim that the defense of justification can be applied in this case to the charge of criminal trespass in the second degree. The rationale of Anthony relating to the defense of necessity is here pertinent to the defense of justification. The law, as expressed by the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and as expressed by the Connecticut legislature by Public Acts 1990, No. 90-113, does not permit the use of General Statutes § 53a-19 as a justification defense under the circumstances of this case.

The judgment is affirmed.

       The defendant claims due process and equal protection of the law violations under both the Connecticut and federal constitutions.

         General Statutes § 53a-19 (a) provides in pertinent part that “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


author: Heiman, J.

text:
    State of Connecticut v. Renwrick Mierez
    (9178)
    Dupont, C. J., Foti and Heiman, Js.

      Argued February 6
    decision released May 7, 1991

      Dennis F. O’Toole, assistant public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, and Jennifer Sanders, deputy assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of one count of sale of a narcotic substance in violation of General Statutes § 21a-277 (a), and one count of possession of a narcotic substance, in violation of General Statutes § 21a-279 (a). In each instance, the narcotic substance involved was cocaine.

The defendant claims that the trial court (1) improperly denied his motion to suppress evidence and (2) improperly charged the jury on the crime of sale of a narcotic substance when the evidence produced by the state was insufficient to prove that crime beyond a reasonable doubt. We disagree with the defendant’s claim that the denial of his motion to suppress was improper, but agree that the evidence was insufficient to support a verdict of guilty on the charge of sale of a narcotic substance. We therefore affirm the defendant’s conviction of the crime of possession of a narcotic substance, and reverse his conviction of the charge of sale of a narcotic substance.

The jury reasonably could have found the following facts. On August 1,1989, Detectives Christopher Lyons and Richard Perrotta of the Hartford police department set up surveillance in the area of 11 Sargeant Street, Hartford, in response to an anonymous tip that a black man in a red shirt was selling drugs at the curb in front of that address. The officers were in an unmarked police vehicle. Lyons and Perrotta observed the defendant, a black male wearing a red shirt, standing on the sidewalk near the curb in front of 11 Sargeant Street. The officers watched the defendant for a period of about fifteen minutes. Two or three times during that period, they saw him stop pedestrians and wave over the driver of a car, have a short conversation with the person he had stopped, and exchange small items with each of these people. The officers were unable to see the items that were being exchanged.

At one point, a white truck occupied by two persons pulled over to the side of the road where the defendant was standing. The driver got out of the truck and approached the defendant. The officers observed the defendant and the man from the truck exchange unidentifiable small items. Once the exchange was completed, the defendant remained in the surveillance area. At this time, Lyons and Perrotta exited their vehicle. Lyons pursued the defendant, while Perrotta approached the driver of the white truck. Lyons was dressed in civilian clothing, but his police badge was clearly visible on a chain around his neck. His service revolver was also visible. As Lyons approached, the defendant began to run down the driveway of 11 Sargeant Street. When Lyons yelled at the defendant to stop, he did. As he stopped, the defendant turned away from Lyons slightly and put his hands in the front waistband of his trousers. Lyons grabbed the defendant, reached into the same area of the defendant’s waistband, where the officer found a plastic bag that was tied at the top and contained a white powder. A further search of the defendant revealed that he had a newspaper fold containing a white powder in the small of his back at his beltline, and $80 in his pocket. The defendant was then placed under arrest.

Meanwhile, Perrotta approached the driver of the white truck, stopping him before he was able to reenter the truck. Perrotta searched the driver, but found no narcotics in his possession. Lyons then called to Perrotta for assistance. When Perrotta responded to his partner’s call, the driver and his passenger left the scene in the white truck before Perrotta could obtain the name of the driver or any information about the truck or its owner. Neither the driver of the white truck nor the passenger were ever apprehended by the police. A field test and a full laboratory test were performed on the white powder that had been taken from the defendant. Both of these tests were positive for the narcotic substance, cocaine.

I

The defendant first claims that the court improperly denied his motion to suppress the evidence that was seized from his person at the time of his arrest. The defendant posits that the court improperly concluded, as a matter of law, at the close of the suppression hearing, that the search of his person was justified as a search incident to a lawful arrest. He argues that the police lacked probable cause to believe that he had committed a felony.

The state argues that the police did have the requisite probable cause, and, as an alternative ground to uphold the search, it asserts that the search was a justifiable protective frisk that was conducted pursuant to a valid Terry stop. Terry v. Ohio, 392 U.S.1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). This court can sustain a judgment on a different theory than that adopted by the trial court. Groton v. Commission on Human Rights & Opportunities, 169 Conn. 89, 101, 362 A.2d 1359 (1975). Thus, we conclude that the search can be upheld on the alternative ground that it was conducted pursuant to a valid Terry stop. See State v. Beckenbach, 1 Conn. App. 669, 673 n.4, 476 A.2d 591 (1984), rev’d on other grounds, 198 Conn. 43, 501 A.2d 752 (1985).

“It is well established that police may momentarily detain an individual for investigative purposes if the police have ‘a “reasonable and articulable” suspicion that [he has] engaged in criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S. Ct. 2752, 65 L. Ed. 2d 890 (1980); Terry v. Ohio, [supra].State v. Carter, 189 Conn. 611, 617, 458 A.2d 369 (1983). What constitutes a reasonable and articulable suspicion depends on the ‘totality of the circumstances.’ United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981). ‘The test to be applied, however, is an objective one: “would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate?” Terry v. Ohio, supra, 22. In justifying the particular intrusion “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, supra, 21; see United States v. Brignoni-Ponce, [422 U.S. 873, 884, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)]; State v. Watson, 165 Conn. 577, 585, 345 A.2d 532 (1973).’. . .” State v. Aversa, 197 Conn. 685, 690-91, 501 A.2d 370 (1985).

In addition, when an officer is investigating an individual at close range whose conduct or suspicious behavior justify a belief by the officer that the suspect is armed and dangerous, the officer may conduct a limited search for weapons. State v. Federici, 179 Conn. 46, 51, 425 A.2d 916 (1979). The search must be reasonably related in scope to the circumstances that justify it in the first place. State v. Aillon, 202 Conn. 385, 399, 521 A.2d 555 (1987); State v. Moreland, 23 Conn. App. 495, 497-98, 582 A.2d 212 (1990).

Our examination of the facts in the present case leads us to conclude that Lyons had the right to stop the defendant because he had a reasonable and articulable suspicion as required by Terry v. Ohio, supra. Specifically, when the officers arrived at the surveillance site they observed that the defendant was wearing a red shirt, as the anonymous caller had said he would be, and they watched as he exchanged small items with passersby and the driver of the white truck. The officers were aware of the fact that the area was one in which drugs were sold because they had made numerous narcotics arrests in that vicinity in the past. On the basis of the totality of the facts available from the officers’ observations, training, and experience, they had a reasonable and articulable suspicion that the defendant was engaged in illegal drug transactions. State v. Aversa, supra; State v. Wylie, 10 Conn. App. 683, 686, 525 A.2d 528, cert. denied, 204 Conn. 807, 528 A.2d 1156 (1987). The defendant concedes that at this point Lyons had a right to make an investigative stop, but claims that the reaching into the defendant’s waistband by Lyons exceeded the scope of a limited protective search under Terry.

The defendant’s furtive activity at the initiation of the stop further aroused the officer’s suspicion, allowing him to prolong the stop and broaden its scope. When the defendant first ran and then stopped and reached into the waistband of his pants, the police were justified in conducting a pat down search for weapons. “It is by now common knowledge among police officers that sellers of narcotics are frequently armed.” State v. Marino, 17 Conn. App. 677, 683, 555 A.2d 455, cert. denied, 211 Conn. 803, 559 A.2d 1138 (1989). “ ‘An officer should not be made to choose between his own safety and what could later be construed as an illegal search and seizure.’ ” State v. Santiago, 17 Conn. App. 273, 277, 552 A.2d 438 (1989); see also State v. Holder, 18 Conn. App. 184, 188, 557 A.2d 553 (1989). In the past, we have held, under similar circumstances, that a search such as the one involved here was justified. State v. Escobales, 16 Conn. App. 272, 275, 547 A.2d 553, cert. denied, 209 Conn. 827, 552 A.2d 434 (1988), cert. denied, 490 U.S. 1023, 109 S. Ct. 1753, 104 L. Ed. 2d 189 (1989). We continue to adhere to the rule of that case and conclude that the officers were justified in frisking the defendant. Thus, the court properly admitted the cocaine that was found at both the front and back of the defendant’s waistband, as well as the currency that was found in his pockets. See State v. Moreland, supra.

Because we have concluded that the search was justified under our cases, we need not address the defendant’s claim that the police lacked probable cause to arrest and, thus, could not justify the search as one incident to a lawful arrest.

We conclude that the trial court correctly denied the defendant’s motion to suppress evidence.

II

The defendant next asserts that the trial court incorrectly denied his motion for a judgment of acquittal because the evidence produced by the state was insufficient to prove beyond a reasonable doubt that he sold a narcotic substance. We agree.

The information that was submitted to the jury was specific in that it charged that “on or about August 1, 1989, at approximately 1:40 p.m. at or near 11 Sargeant Street in the city of Hartford, the defendant Renwrick Mierez . . . did sell a narcotic substance, to wit, cocaine, in violation of General Statutes § 21a-277 (a) . . . .” The state alleged no alternative theory of criminal liability, such as possession of a narcotic substance with intent to sell in violation of § 21a-277 (a). Instead, the state elected to proceed on the very specific allegation of a sale. See State v. Hahn, 207 Conn. 555, 563-65, 541 A.2d 499 (1988).

When called upon to review a challenge to the sufficiency of the evidence, we are required to apply a two-pronged analysis. We must first review the evidence presented at trial, construing it in a light most favorable to sustaining the jury’s verdict. We are then obligated to determine whether, from the facts established and the inferences reasonably drawn therefrom, the jury reasonably could have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Turner, 24 Conn. App. 264, 267, 587 A.2d 1050 (1991); State v. Dawson, 23 Conn. App. 720, 722-23, 583 A.2d 1326 (1991).

General Statutes § 21a-240 (50) defines sale, insofar as it applies to illegal drug transactions, as: “any form of delivery which includes barter, exchange or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, agent, servant or employee.” As we have previously stated, the “sale” of an illegal drug is not limited to an exchange for value, and must encompass some form of delivery. State v. Jackson, 13 Conn. App. 288, 294, 535 A.2d 1327 (1988). Thus, in order to satisfy its burden of proof, the state was required to prove beyond a reasonable doubt that there was a sale as defined in the statute, and that the delivery was of a narcotic substance, in this case, cocaine. After reviewing the evidence that was presented at trial in the light most favorable to sustaining the verdict, we conclude that the state did not meet its burden.

The officers who engaged in the surveillance of the defendant’s activities described the items that they claimed were given by the defendant to others only as small objects. Likewise, they were unable to give any better description of the items that the defendant received in return. No evidence was offered to show where on his person the defendant obtained the small objects that he allegedly passed. No evidence was produced that he took these objects from the same area in the front of his pants from which the glassine bag was seized, or from the small of his back at the waistband of his trousers where the newspaper fold was located. In short, the state did not produce any evidence to connect the seized narcotics with the activities of the defendant.

A jury may not engage in speculation and conjecture to reach a factual result; State v. Mandrell, 199 Conn. 146, 154, 506 A.2d 100 (1986); and any inferences that are drawn must be rational and arise out of the evidence that has been presented. State v. Little, 194 Conn. 665, 673, 485 A.2d 913 (1984). Although proof beyond a reasonable doubt does not require proof beyond a possible doubt; State v. Payne, 186 Conn. 179, 184, 440 A.2d 280 (1982); it does require that the proof be such as to preclude every reasonable hypothesis except that which it tends to support, and that it be consistent with the defendant’s guilt and inconsistent with any other rational conclusion. State v. Morrill, 193 Conn. 602, 610, 478 A.2d 994 (1984). Further, this obligation of proof beyond a reasonable doubt extends to every essential element of the crime charged. State v. Green, 194 Conn. 258, 274, 480 A.2d 526, cert. denied, 469 U.S. 1191, 105 S. Ct. 964, 83 L. Ed. 2d 969 (1985). Absent resort to speculation and conjecture, no evidence was presented in this case from which the jury reasonably could have drawn an inference of delivery of cocaine to another person by the defendant.

The state’s reliance on State v. Hall, 165 Conn. 599, 345 A.2d 17 (1973), and State v. Baskins, 12 Conn. App. 313, 530 A.2d 663, cert. denied, 205 Conn. 811, 532 A.2d 586 (1987), is misplaced. In State v. Hall, supra, the police observed the defendant hand something to an undercover officer and receive money in return. The undercover officer brought his purchases to another officer. The items that were purchased were four glassine bags of what proved to be narcotics. On the same day, the surveillance officer again observed a transaction between the defendant and the same undercover officer in which six glassine bags were exchanged for money. These bags also were taken by the police and field tested positive as narcotics. Thus, in Hall, two sales were observed by the police and the product of these sales was taken by the police and analyzed immediately after the sale. In State v. Baskins, supra, the police observed the defendant take money from an individual, who then walked to a different area, picked up a brown paper bag, removed something from the bag, placed the bag back from where he had taken it, walked back to the individual and handed something to the individual. The police observed that the objects that the defendant gave to the individual were two glassine bags. Before the defendant was arrested, the police seized the brown paper bag in which they found ten glassine bags that field tested positive for narcotics. Because the bags that were delivered by the defendant came from this same paper bag, we concluded that the jury could properly draw an inference that the two glassine bags that the defendant had taken from the same brown bag, and delivered to the individual also contained the same narcotic. Id., 316-17.

Here, none of the corroborative facts as found in Hall and Baskins was present. The officers gave no description of the packaging, and saw no money change hands. The narcotics that were seized did not fit the officer’s description of “small objects.” In addition, Perrotta’s search of the driver of the white truck disclosed that he possessed no narcotics. Although a trier of fact may-draw reasonable inferences from the facts that it finds, it may not resort to speculation and conjecture. State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983). “Where it cannot be said that the trier of fact could find guilt proved beyond a reasonable doubt, then a conviction cannot stand.” State v. Mandrell, supra. We conclude that the record does not support a finding of guilt beyond a reasonable doubt of the crime of sale of narcotics.

The judgment is affirmed as to the conviction of possession of narcotics in violation of General Statutes § 21a-279 (a). The judgment is reversed as to the conviction of sale of narcotics in violation of General Statutes § 21a-277 (a) and the case is remanded with direction to render a judgment of acquittal with respect to that count and to resentence the defendant in accord with his other conviction.

In this opinion the other judges concurred.

       General Statutes § 21a-277 provides in pertinent part: “penalty FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 21a-279 provides in pertinent part: “penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL SANCTIONS, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.


text:
    Theresa A. Cadrain v. Kent Condominiums, Inc., et al.
    (9419)
    O’Connell, Lavery and Cretella, Js.
    Argued March 27
    decision released May 7, 1991

      Kenneth John Laska, for the appellant (plaintiff).

      Kenneth J. McDonnell, for the appellee (named defendant).

      Michael J. O’Sullivan, for the appellee (defendant Nanak’s Seasonal Services, Inc.).
   Per Curiam.

The plaintiff brings this appeal from a jury verdict rendered for the defendants. The action arises from the plaintiffs fall due to ice and snow in the parking area of the condominiums where the plaintiff resided. The plaintiff also brought suit against the corporation that performed the snow plowing services for the condominiums. In their answers, both defendants denied that they were negligent and alleged by way of special defense that the plaintiff was contributorily negligent. The plaintiff claims that the court improperly failed to charge the jury that General Statutes §§ 47-80 and 47-244 create a statutory duty of care, a violation of which would be actionable negligence. There is no merit to the plaintiffs claim that these statutes create such a duty. We need not address that claim, however. The plaintiff makes no claim relating to the court’s charge on contributory negligence. Since the plaintiff made no attempt to submit interrogatories as permitted by Practice Book § 312, the general verdict of the jury in favor of the defendants creates a presumption that all of the issues were found for the defendants. Hanlon v. Stettbacher, 13 Conn. App. 571, 573, 538 A.2d 705 (1988).

The judgment is affirmed.


author: Spallone, J.

text:
    State of Connecticut v. Kenneth Gelormino, Jr.
    (8438)
    Spallone, Lavery and Landau, Js.
    Argued February 5
    decision released May 7, 1991

      Vicki H. Hutchinson, 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 his 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 third degree in violation of General Statutes § SSa-bl.

On appeal, the defendant claims that the trial court improperly (1) failed to give his requested jury instruction that the state had the burden of disproving his claim of self-defense beyond a reasonable doubt, and (2) denied his motion for judgment of acquittal because there was insufficient evidence to sustain his conviction of burglary in the first degree. We hold that the trial court improperly refused to charge the jury that the state had the burden of disproving his claim of self-defense beyond a reasonable doubt and we reverse the conviction of burglary in the first degree and assault in the third degree.

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

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

That afternoon, the defendant’s father, Kenneth Gelormino, Sr., himself a codefendant, suspecting Vaill’s involvement, called Vaill’s girl friend, Audrey McDonald, and asked her where he was staying. Upon her indication that Vaill was staying at Consolini’s house, the defendant, his father and his brother William picked up McDonald at her home and drove her to Pulaski Street, where she pointed out Consolini’s house. They parked nearby and engaged in a discussion as to 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 Vaill.

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

At that point, the defendant and his father entered the house through the side door and William walked out. The defendant and his father asked Vaill, who was sitting down, for the toolbox and, when Vaill denied knowing anything about it, the father punched him in the head, rendering him stunned and dazed. The father continued beating Vaill 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 father that Vaill was being beaten because he had taken something from them. Gordon then left the house and waited around the corner. The father continued to beat Vaill while the defendant searched the house. Thereafter, the defendant joined his father in the assault and commenced striking Vaill with a wooden two-by-four. During the assault, Vaill remained seated and attempted to shield his head with his hands.

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

The victim was faint, dizzy and bleeding from multiple lacerations. A police officer, responding to a call, arrived at the house where he found the victim seated on the porch washing himself with a garden hose. The officer looked into the house through an open door and noticed blood on the floor. After obtaining a search warrant, the police entered Consolini’s house where they found a bloodstained two-by-four, a bloodstained cane shaft and its detached handle. There were 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. After it was determined 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 that resulted from the splenic injury and the initial surgery.

The defendant, his father and brother 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, his father and brother 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 weapon, 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 jury convicted the defendant of assault in the second degree, burglary in the first degree and larceny in the fifth degree. Thereafter, the defendant filed motions for judgment of acquittal on the assault and burglary counts. The court denied the motion with regard to the burglary count and reduced the conviction of assault in the second degree to the lesser included offense of assault in the third degree.

The trial court sentenced the defendant to one year on the third degree assault conviction, sixteen years on the first degree burglary conviction, execution suspended after five years, and six months on the fifth degree larceny conviction. The sentences of one year and of six months were to be served concurrently to each other but consecutive to the burglary sentence for a total effective sentence of sixteen years, suspended after six years with five years probation.

The defendant’s first claim is that the trial court improperly refused to instruct the jury that the state had the burden of disproving his claim of self-defense beyond a reasonable doubt.

The defendant testified at trial that upon his entry into the Consolini house and after he asked for the return of the toolbox, the victim pulled out a gun and held it to the defendant’s head. He further testified that he was hit in the eye with the gun and that the victim declared, “I will blow your head off.” The defendant asserted that he and the victim fought until the gun was dropped.

At the conclusion of all evidence, the defendant requested that the trial court include in its jury instruction the following: “Once any evidence has come into the case, on which reasonable doubt as to self-defense could be made, the state has the burden of proving beyond a reasonable doubt that the defendant’s actions were not in self-defense.” See State v. Jenkins, 158 Conn. 149, 154, 256 A.2d 223 (1969). The court failed to instruct the jury in accordance with the requested charge and, in fact, never specifically instructed the jury that it was the state’s burden to disprove beyond a reasonable doubt that the defendant acted in self-defense.

Self-defense is raised by way of justification, and when such defense is asserted “the state shall have the burden of disproving such defense beyond a reasonable doubt.” General Statutes § 53a-12 (a); State v. Miller, 186 Conn. 654, 661, 443 A.2d 906 (1982); State v. Fletcher, 10 Conn. App. 697, 707-708, 525 A.2d 535 (1987), aff’d, 207 Conn. 191, 540 A.2d 370 (1988); State v. Folson, 10 Conn. App. 643, 647, 525 A.2d 126 (1987); State v. Fullard, 5 Conn. App. 338, 340, 497 A.2d 1041 (1985). The evidence presented at trial supported the defendant’s request for a self-defense charge. The defendant properly requested that the court charge the jury on self-defense and excepted to the court’s failure to charge the jury on the state’s burden to disprove the defense. He was entitled to have the jury properly and adequately instructed on that theory of defense. State v. Folson, supra, 646.

The state argues that the charge when read as a whole was more than adequate to instruct the jury because throughout the charge the state’s burden of proof was repeatedly declared to be beyond a reasonable doubt.

We reject, however, the notion that a general inclusion of an instruction anywhere in the charge as to the state’s burden of proof beyond a reasonable doubt is sufficient to inform the jury as to the state’s burden when disproving the defendant’s due process assertion of a recognized specific defense. “ ‘A fundamental element of due process is the right of a defendant charged with a crime to establish a defense. . . . 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 assault was not justified.’ State v. Miller, supra, 660-61; see also State v. Rouleau, 204 Conn. 240, 528 A.2d 343 (1987).” State v. Holloway, 11 Conn. App. 665, 671, 528 A.2d 1176 (1987).

The failure of the court specifically to instruct the jury on the state’s burden of disproving the defense of self-defense to the charge of assault in the second degree deprived the jury of a thorough knowledge of the law that it could apply to the facts relevant to that charge.

In State v. Holloway, supra, 671-72, we stated that the lack of a full knowledge of the law regarding self-defense “precluded the jury from considering whether the state had proved beyond a reasonable doubt that the defense had been disproved.” Without such knowledge, the jury was left to determine for itself who had the burden of disproving the defendant’s assertion of self-defense and, indeed, had to determine for itself the burden of proof required to refute such defense. A jury must receive a proper instruction on justification in order for it to determine whether the state has met its burden of proof. State v. Fletcher, supra, 708. It is impossible for the jury to make such a determination without the knowledge that the state has that burden.

Because the trial court did not properly charge the jury as to the state’s burden to disprove the defense of self-defense beyond a reasonable doubt, we must set aside the defendant’s conviction of assault in the third degree. Further, because the jury was instructed that the assault was the crime that the defendant intended to commit as an element of the offense of burglary in the first degree, the defendant’s conviction of burglary in the first degree must also be set aside. Our disposition of the defendant’s first claim is dispositive and we need not consider the defendant’s second claim.

The judgment is reversed with respect to the defendant’s convictions of the crimes of assault in the third degree and burglary in the first degree, and the case is remanded for a new trial on those charges.

In this opinion the other judges concurred.

       The defendant has not appealed from his conviction of the crime of larceny in the fifth degree in violation of General Statutes § 53a-125a; thus, his conviction and sentence on that charge stands.

       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, Sr., was convicted and is appealing separately. State v. Gelormino, 24 Conn. App. 563, 590 A.2d 480 (1991).