author: FOTI, J.

text:
    STATE OF CONNECTICUT v. NATHANIEL BOYKIN
    (AC 21209)
    Foti, Schaller and Mihalakos, Js.
    Argued December 4, 2002
    officially released January 28, 2003

      Richard W. Callahan, special public defender, for the appellant (defendant).

      Robin S. Schwartz, deputy assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Nathaniel Boykin, appeals from the judgment of conviction, after a jury trial, of the crimes of attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), and sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (l). On appeal, the defendant claims that the trial court improperly (1) denied his motion for a mistrial after the state, during its case-in-chief, introduced evidence of his prior arrest record and (2) refused to permit him to testify as a surrebuttal witness. We affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the jury reasonably could have found the following facts. On the evening of April 9,1999, the female victim spent time socializing in a bar in Bridgeport. At around 2 a.m. on April 10, 1999, the victim left the bar and walked to a nearby McDonald’s restaurant to purchase food. Upon arriving, the victim encountered the defendant, an acquaintance. McDonald’s was not open for business at that hour, and the victim accepted the defendant’s invitation to walk with her to a diner in Fairfield.

Upon their arrival at the diner, the victim and the defendant learned that it also was not open for business. At that point, the victim told the defendant that she intended to go to an empty parking area behind the diner to urinate. Shortly thereafter, while the victim was behind the diner partially undressed, the defendant pushed her to the ground and began to choke her. Despite the victim’s efforts, both verbal and physical, to fend off the assault, the defendant forcibly positioned himself on top of the victim and forced her to perform oral sex and to engage in vaginal intercourse.

After he completed his sexual assault, the defendant told the victim that he could not trust her and began to choke her again. The victim freed herself from the defendant’s hold on her neck and ran to a nearby motor inn where she summoned police assistance. When police arrived, they found the victim to be hysterical. The victim had scratch marks on her neck that were consistent with her allegation that the defendant had choked her. She told police that she had been raped, and the police found items of her personal property behind the diner. The results of rape kit tests performed on the victim after the assault were consistent with a finding that the defendant had engaged in sexual intercourse with the victim. After further investigation, police arrested the defendant and charged him with the crimes of which he was convicted. Additional relevant facts will be provided as necessary in the context of the defendant’s claims.

I

The defendant first claims that the court improperly denied his motion for a mistrial after the state, during its case-in-chief, introduced evidence of his prior arrest record. We disagree.

The following additional facts underlie the defendant’s claim. As part of its case-in-chief, the state called Frederick Hine, a detective in the Fairfield police department who had investigated the case, to testify. Hine testified as to the course of the investigation and, specifically, how the police came to identify the defendant as a suspect. Immediately after the incident, the victim identified the assailant solely as “Nate.” Hine testified that by virtue of his interviews with the victim and on the basis of evidence that she provided to him, he ultimately learned the defendant’s full name and interviewed him.

The prosecutor then asked Hine how he used the information that he learned during his initial interview with the defendant at the defendant’s residence. Hine’s response to that inquiry forms the basis of the present claim. The following colloquy occurred:

“[Prosecutor]: Okay. Now, after you went to [the defendant’s residence] . . . did you do anything with the information that you had received while you were [there] concerning [the defendant]?

“[The Witness]: Yes. We then went to the Bridgeport police department now having the name Nathaniel Boy-kin and the date of birth. We completed a criminal history check on the name, uh, hoping to find that with an arrest record there may be a photograph.”

The defendant’s counsel immediately objected to Hine’s response. The court ordered the response stricken and ordered the jury to ignore the response. The prosecutor then continued his examination of Hine:

“[Prosecutor]: Now, Detective Hine, you said that you went to the Bridgeport police department. After you conducted your investigation or an inquiry at the Bridgeport police department, did you do anything else with respect to this particular case? Do you remember what you did?

“[The Witness]: Yes. I asked the Bridgeport police department if—

“[Prosecutor]: Okay. Based upon your discussions with the Bridgeport police — let me couch it this way. Based upon your discussions with the Bridgeport police, did you get some information from them?

“[The Witness]: Yes.

“[Prosecutor]: General information.

“[The Witness]: Yes.

“[Prosecutor]: Okay. And based upon that information that you received from them, what did you do next in this investigation?

“[The Witness]: I was able to obtain a photographic array consisting of eight similar looking black male subjects, one of which was [the defendant].

“[Prosecutor]: Okay. And with that photographic array — what did you [do] with the photographic array?

“[The Witness]: That evening . . . we took the array and went to the home of [the victim] and showed it to her.

“[Prosecutor]: Okay. And was [the victim] able to make an identification at that point in time?

“[The Witness]: Yes. She immediately looked at— pointed to photograph number five and said, absolutely, without doubt, 100 percent sure she [was] that the subject in photograph number five was a photograph of the person who sexually assaulted her.

“[Prosecutor]: I’m going to show you what has been previously marked as a full exhibit. State’s exhibit four. Do you recognize this particular document, sir?

“[The Witness]: Yes.

“[Prosecutor]: And what is this?

“[The Witness]: That’s the photographic array, uh, that I obtained from the Bridgeport police department.”

Shortly thereafter, the state rested its case. The defendant’s counsel requested a mistrial. In support of his motion, the defendant’s counsel argued that Hine testified that “he had contacted the Bridgeport police department, that they had a rap sheet on [the defendant] and that they had a photograph of [the defendant] . . . from a previous arrest, and that’s how he got the photo array.” The defendant’s counsel posited that the defendant’s “right to remain silent may have the effect of not allowing the jury to consider his previous felony conviction.” Counsel further argued that he believed that the court’s curative instruction would not remedy the prejudice caused to his client.

The prosecutor opposed the defendant’s motion by arguing that Hine indicated merely that he had obtained a photograph of the defendant from the Bridgeport police department and that this testimony did not necessarily imply that the department possessed such photograph because the defendant previously had been convicted of a crime. The prosecutor also argued that contrary to the defendant’s counsel’s interpretation of Hine’s testimony, Hine did not indicate that the Bridgeport police department had a “rap sheet” on the defendant. The prosecutor further pointed out that the photographic array submitted to the jury as an exhibit contained the phrase “Bridgeport police department.”

The court denied the motion for a mistrial. It reasoned that any prejudice caused by Hine’s remark was cured by the court’s immediate cautionary instruction. The court noted that the statement was not “deliberate.” Further, the court noted that Hine’s testimony was not so severe as to lead to a conclusion that the jury would be unable to follow the court’s instruction to disregard Hine’s statement. The court also found it persuasive that the photographic array previously introduced as a full exhibit contained the phrase “Bridgeport police department.” The court informed the defendant’s counsel that should he so desire, the court would deliver another cautionary instruction to the jury in regard to Hine’s testimony.

We begin our analysis by identifying the standard by which we will review the defendant’s claim. “The decision as to whether to grant a motion for a mistrial ... is one that requires the trial court to exercise its judicial discretion. . . . Our review of the trial court’s exercise of its discretion is limited to questions of whether the court correctly applied the law and could reasonably have concluded as it did. . . . Every reasonable presumption will be given in favor of the trial court’s ruling. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. . . .

“While the remedy of a mistrial is permitted under the rules of practice, it is not favored. ... If curative action can obviate the prejudice, the drastic remedy of a mistrial should be avoided. . . . The general rule in Connecticut is that a mistrial is granted only where it is apparent to the court that as a result of some occurrence during trial a party has been denied the opportunity for a fair trial. . . . The trial court enjoys wide discretion in deciding whether a mistrial is warranted . . . and its evaluation as to events occurring before the jury is to be accorded the highest deference. . . . Every reasonable presumption will be given in favor of the trial court’s ruling . . . because the trial court, which has a firsthand impression of the jury, is in the best position to evaluate the critical question of whether the juror’s or jurors’ exposure has prejudiced a defendant. ... It is only when an abuse of discretion is manifest or where an injustice appears to have been done that a reversal will result from the trial court’s exercise of discretion. ... A reviewing court gives great weight to curative instructions in assessing error.” (Internal quotation marks omitted.) State v. Aponte, 66 Conn. App. 429, 449-50, 784 A.2d 991 (2001), cert. denied, 259 Conn. 907, 789 A.2d 995 (2002).

“The general rule is that evidence of the commission of other crimes or specific acts of misconduct is inadmissible to prove that a defendant is guilty of the crime charged against him.” State v. Talton, 197 Conn. 280, 289, 497 A.2d 35 (1985). “Such evidence is admissible for other purposes, however, such as when it is particularly probative in showing such things as intent, an element in the crime, identity, malice, motive or a system of criminal activity, to name some exceptions to the rule.” (Internal quotation marks omitted.) State v. Hanks, 39 Conn. App. 333, 344, 665 A.2d 102, cert. denied, 235 Conn. 926, 666 A.2d 1187 (1995). Additionally, under certain circumstances, a court may permit inquiry into a defendant’s prior acts of misconduct; Conn. Code Evid. § 6-6 (b); or permit the introduction of evidence that a defendant has been convicted of certain crimes; id., § 6-7. The state, however, cannot attempt to impeach a defendant’s credibility by means of his criminal record unless the defendant himself puts his character at issue. State v. Rodriguez, 37 Conn. App. 589, 614, 658 A.2d 98, cert. denied, 234 Conn. 916, 661 A.2d 97 (1995).

On appeal, the defendant argues that the court should have granted his motion for a mistrial because the state violated his due process rights by violating his “right to remain silent and the right to be acquitted absent proof of guilt beyond a reasonable doubt.” For several reasons, we conclude that the defendant is unable to demonstrate that any constitutional violation occurred. As previously stated, we examine the court’s exercise of discretion to determine whether it correctly applied the law and reasonably could have concluded as it did in denying the motion for a mistrial.

The starting point of our analysis is the allegedly improper statements themselves. First, we observe that Hine merely referenced a criminal arrest record. He testified: “We completed a criminal history check on the [defendant’s] name . . . hoping to find that with an arrest record there may be a photograph.” Hine then testified that after contacting the Bridgeport police department, he was able to obtain a photographic array that included the defendant’s photograph. Hine’s improper reference to a prior arrest was, at best, vague. Hine did not state that the defendant had been arrested, when such arrest might have occurred, if the defendant had been tried for a crime, what specific charges he might have faced, if he was convicted or if he was imprisoned. Simply stated, the remark’s lack of specificity leads us to conclude that the remark did not unfairly prejudice the defendant in the eyes of the jury. See State v. Talton, supra, 197 Conn. 290-91; cf. State v. Ferrone, 97 Conn. 258, 268, 116 A. 336 (1922) (prejudicial effect of evidence tending to prove defendant was “notorious criminal” could not be remedied by subsequent curative measures).

Second, we note that after Hine mentioned “an arrest record,” the court immediately struck Hine’s testimony and ordered the jury to disregard that testimony. The immediacy of the court’s instruction is persuasive. Given the nature of Hine’s testimony, we conclude that it likely caused little or no prejudice to the defendant. Even if it did, we further conclude that the court’s immediate curative instruction sufficiently cured any prejudice caused by the single improper reference to “an arrest record.”

Third, having reviewed the transcript of the proceedings, we agree with the court that it does not reveal that the prosecutor deliberately elicited Hine’s remark concerning “an arrest record” or that he sought to inject any evidence of a prior arrest into the proceeding. After the court struck Hine’s statement, Hine testified that he was able to obtain a photographic array that contained the defendant’s photograph from the Bridgeport police department. We conclude that this aspect of Hine’s testimony was not improper. That testimony likewise did not suggest that the defendant had been arrested or that the Bridgeport police department had his photograph because he did anything wrong in the first instance. The court, during its charge, specifically instructed the jury not to consider the police photographic array to be evidence that the defendant previously had committed a crime. 6Further, we note that the photographic array itself contained the notation “Bridgeport police department.” It is not consistent for the defendant to complain, given the fact that the array was a full exhibit at trial, that Hine’s testimony that he obtained the array from the police department in any way prejudiced the defendant’s right to a fair trial.

Our conclusion that it is not likely that Hine’s testimony deprived the defendant of a fair trial is bolstered by the fact that the state presented a strong case against the defendant. The victim positively identified the defendant, whom she knew prior to the sexual assault, as the assailant. Police who had investigated the assault testified about their observations of the victim on the night of the incident and statements that the defendant made thereafter during the course of their investigation. Furthermore, medical and forensic experts testified in corroboration of the victim’s complaint.

The trial judge enjoyed a superior vantage point from which to gauge the challenged testimony’s likely effect on the jury and whether such testimony was of such nature as to warrant the disfavored remedy of a mistrial. Not every implication that a defendant previously has been arrested rises to the level of a constitutional violation. See State v. Talton, supra, 197 Conn. 287-92; State v. Pharr, 44 Conn. App. 561, 578-86, 691 A.2d 1081 (1997); State v. Rodriguez, supra, 37 Conn. App. 611-16. On the basis of the record before us, we conclude that the court properly exercised its discretion in denying the defendant’s motion.

II

The defendant next claims that the court improperly refused to permit him to testify as a surrebuttal witness. We disagree.

The facts and procedural history underlying the defendant’s claim are as follows. As stated in part I, the state, during its case-in-chief, elicited testimony from Hine. During his testimony, Hine testified about his meetings with the defendant during the course of his investigation. Specifically, Hine testified that on April 13, 1999, he interviewed the defendant at the defendant’s residence. Hine also testified that the defendant told him that at the time of the incident, he was with his girlfriend, Jocelyn Flores. Hine further testified that the defendant told him that he knew the victim, but that he had not seen her for approximately eight months. Hine testified that during a second interview of the defendant on April 21,1999, the defendant informed him that he had spoken with an attorney and declined to make any further statements.

The defendant testified at trial. On cross-examination, the prosecutor specifically inquired whether the defendant recalled making the statements that Hine had attributed to the defendant. The defendant stated several times that he did not say anything to Hine. He testified that he recalled the investigators coming to his apartment and speaking with him, but stated that he did not say “one word” to them. He specifically denied having told police of the last time that he saw the victim. The defendant testified that he told police only that he knew who the victim was.

After the defense rested its case, the court permitted the state to recall Hine as a rebuttal witness for the purpose of rebutting the defendant’s testimony that he did not tell the police anything about his whereabouts on the night of the incident. Hine reiterated some of his earlier testimony by stating that the defendant had told him that he had been with his girlfriend, Flores, at the time that the victim was assaulted. Additionally, Hine testified that prior to the time of the interview, the police did not know who Flores was and that in the absence of information provided by the defendant, they would not have had the ability to contact and to speak with her.

Thereafter, the defendant’s counsel notified the court that he wanted to recall the defendant as a surrebuttal witness for the purpose of permitting the defendant to testify about his interview with Hiñe. The court denied the request, stating that the defendant already had so testified. The court found that the defendant clearly and “emphatically” had testified that he did not give any statement to Hiñe. The court also reasoned that the proffered evidence did not rebut the testimony elicited during rebuttal because it had admitted only so much of Hine’s testimony that related to the fact that he and the other investigators learned Flores’ identity from the defendant himself.

Having reviewed the facts relevant to the defendant’s claim, we now set forth our standard of review. “Rebuttal evidence is that which is offered to meet new matters raised in [a defendant’s case], to contradict prior testimony and to impeach or rehabilitate witnesses .... Surrebuttal evidence is that which is offered to meet evidence raised in rebuttal. [0]nly evidence to explain away new facts brought forward by the proponent in rebuttal ... is properly admissible [in surrebuttal]. . . . [Our Supreme Court has] previously stated that there is no constitutional right to present surrebuttal evidence. . . . The presentation of surrebuttal evidence is a matter resting squarely within the discretion of the trial court. . . . The defendant must demonstrate some compelling circumstance and the proffered evidence must be of such importance that its omission puts in doubt the achievement of a just result.” (Citations omitted; internal quotation marks omitted.) State v. Turner, 252 Conn. 714, 723-24, 751 A.2d 372 (2000).

In the present case, the only evidence adduced by the state during rebuttal was Hine’s testimony that the defendant’s statements to the police during the April 13, 1999 interview provided the only basis on which they learned of Flores’ identity. The court permitted the prosecutor to elicit that testimony to contradict, or to rebut, the defendant’s testimony that he did not say anything to police when they interviewed him. The record reflects that the prosecutor cross-examined the defendant about what transpired during the interview and, specifically, whether Hine’s testimony about what occurred was accurate. The defendant’s attorney had a full opportunity, during redirect examination, either to rehabilitate the defendant’s credibility or to clarify the defendant’s prior testimony, if he so desired.

Under the principles previously set forth, the defendant was permitted, by means of surrebuttal, only to explain away new facts set forth by the state in its rebuttal. His proffered evidence did not satisfy that standard; he did not seek to contradict or to rebut the fact that absent his statement, police investigators would not have known Flores’ identity. The defendant does not point to anything in his proffered evidence that would have refuted the fact elicited by the state’s rebuttal testimony. Instead, the defendant sought to testify as to what transpired during his interview with Hiñe, a topic that was well covered in his earlier testimony, and, apparently, to strengthen the credibility of that testimony.

“Bolstering of defense evidence is not permitted on surrebuttal.” Id., 724. The proffered testimony would not rebut or refute evidence elicited by the state on redirect. Instead, it appears that the defendant offered his testimony merely to rehabilitate or to clarify his prior testimony because he disagreed with Hine’s testimony. See footnote 8. For those reasons, we conclude that the court properly exercised its discretion when it declined to admit such testimony on surrebuttal. Likewise, we conclude that the defendant has not demonstrated that compelling circumstances existed for the admission of his proffered testimony or that the omission of such evidence casts doubt on the propriety of the court’s judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-54a (a) provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person . . . .”

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person which reasonably causes such person to fear physical injury to such person or a third person . . . .”

       The state did not claim the remark and likewise did not argue that Hine’s remark fell into any of those exceptions.

       The court instructed the jury: “The last response of the witness is stricken and is to be ignored by the members of the jury.”

       The court stated in relevant part: “A comment about the exhibit that included police photographs, ladies and gentlemen. The police have many pictures of people. Simply because the police have a person’s picture does not mean that he has ever committed a crime before or since. So, please understand that there is no connection of guilt of any kind simply because some pictures of the defendant were in the possession of the police.”

       Despite hearing evidence that the defendant had told the police that he had not seen the victim for several months prior to the time of the alleged sexual assault, the defendant, at trial, testified that he had engaged in consensual sex with the victim on the night of the incident.

       The court subsequently ordered that other portions of Hine’s rebuttal testimony be stricken.

       After the court inquired as to the defendant’s proffered testimony and specifically as to whether he already had testified on the subject of what he told Hine during his interview, the defendant’s counsel classified his client’s testimony and argued: “I think what [the defendant] was stating is that he didn’t say anything specifically about the assault. It doesn’t mean that he didn’t give ancillary information regarding his girlfriend or . . . where he worked or . . . where he was. Um, where — you know, whether [his landlord] had seen him that night. Uh, I don’t think he makes mention of that, and I’d like the opportunity to allow him to testify, hey, you know, I said this or I didn’t say this, I disagree with the detective is basically what I’m asking.”


source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ELTON ARLINE
    (AC 22283)
    Schaller, Mihalakos and Bishop, Js.

      Argued November 18, 2002
    officially released January 28, 2003

      Stephen P. Hanchuruck, deputy assistant public defender, with whom was G. Douglas Nash, public defender, for the appellant (defendant).

      Melissa L. Streeto, special deputy assistant state’s attorney, with whom, on the brief, were John A. Con-nelly, state’s attorney, and Gail P. Hardy, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Elton Arline, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). On appeal, the defendant claims that the trial court improperly denied his motion to suppress certain evidence seized by police during a warrantless search of his person in violation of his federal and state constitutional rights. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. The defendant was arrested on November 29, 1996, and charged with possession of narcotics with intent to sell. On April 5, 2001, the defendant filed a motion to suppress certain evidence seized from his person, specifically heroin and money, during the execution of a search and seizure warrant by police at an apartment in Waterbury. In the motion, the defendant argued that the evidence seized from his person was obtained in violation of his rights under various provisions of the United States and Connecticut constitutions. On April 10 and 12, 2001, the court held a hearing on the motion.

The testimony and exhibits presented at the suppression hearing revealed the following facts. Tracy Canale, a detective with the Waterbury police department, testified that on November 29, 1996, at approximately 11:35 a.m., he and several other officers were members of a “raid team” that participated in a warrant authorized search of a third floor apartment on Elizabeth Street in Waterbury. Canale and other members of the raid team, including Timothy Wright, a sergeant with the Waterbury police department, approached and knocked loudly on the rear door of the third floor apartment, and announced, “Police with a search warrant.” After several seconds had elapsed without receiving a response from inside, the team forcibly entered the apartment with a battering ram.

Upon gaining entry to the apartment, the team moved through a kitchen and a living room, then stopped in a bedroom where they encountered three people, including the defendant. The defendant was standing near an open window, “partially in the window looking out,” then turned around, saw Canale and threw an object on the floor. Canale approached the discarded object, observed a paper wrap containing glassine bags that he believed, through his training and experience in narcotics enforcement, contained heroin. Canale stood over the object to preserve it for collection while other members of the raid team entered the room. Thomas Deely, another detective with the Waterbury police department, ultimately seized the object and processed it as evidence.

Wright entered the bedroom just behind Canale, and Canale informed him that the defendant was under arrest. Wright then handcuffed the defendant and patted him down for weapons. After determining that there were no weapons on the defendant’s person, Wright searched and found, in the pockets of the defendant’s pants, a pouch containing seven glassine bags of a white powdery substance that Wright believed was heroin. Wright also found a large sum of cash bound in four separate rolls with elastic bands inside the defendant’s pockets. Wright seized the money, the pouch and its contents from the defendant and gave them to Deely to process as evidence.

On April 12,2001, at the conclusion of the suppression hearing, the court denied the defendant’s motion in an oral decision, concluding that the evidence seized from the defendant’s person was obtained through a “valid search, as a search incident to an arrest.” The court upheld the validity of the search on the ground that probable cause for the defendant’s arrest, independent of the search, existed when Canale observed the defendant throw to the floor an object containing what appeared to be narcotics. The court stated that “an arrest does not have to chronologically precede the search in order for the search to be valid . . . provided that the arrest and the search are substantially contemporaneous and are integral parts of the same incident.” The court, therefore, determined that when Wright entered the room and was told by Canale that the defendant was under arrest, the search of the defendant’s person was a valid search incident to a lawful arrest.

Thereafter, on April 17, 2001, following a jury trial, the defendant was convicted of possession of narcotics with intent to sell in violation of § 21a-277 (a). On May 22, 2001, the defendant was sentenced to a term of twelve years imprisonment, execution suspended after seven years, with five years probation. This appeal followed.

The defendant’s sole claim on appeal is that the court improperly denied his motion to suppress the evidence seized from his person in violation of his rights under the fourth amendment to the United States constitution and article first, § 7, of the constitution of Connecticut. Specifically, the defendant argues that the search of his pockets by Wright exceeded the bounds of a lawful Terry “stop and frisk” because the patdown search did not yield any weapons or contraband. Furthermore, the defendant argues that Wright lacked probable cause to conduct a search incident to a lawful arrest because Wright lacked any basis to believe that the defendant had committed, or was committing, any crime. The defendant concludes that the heroin and money seized during that search should have been suppressed. We disagree. We conclude that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny are inapplicable to this case because the search of the defendant’s person was incident to a lawful arrest for which there was probable cause, independent of the search.

“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 279, 764 A.2d 1251 (2001); State v. Edward B., 72 Conn. App. 282, 288, 806 A.2d 64, cert. denied, 262 Conn. 910, 810 A.2d 276 (2002). “Whether the trial court properly found that the facts submitted were enough to support a finding of probable cause is a question of law. . . . The trial court’s determination on the issue, therefore, is subject to plenary review on appeal.” (Citation omitted.) State v. Clark, supra, 279. “However, [w]e [will] give great deference to the findings of the trial court because of its function to weigh and interpret the evidence before it and to pass upon the credibility of witnesses.” (Internal quotation marks omitted.) Id., 280; accord State v. Nieves, 65 Conn. App. 212, 216, 782 A.2d 203 (2001).

“Under both the federal and the state constitutions, a warrantless search and seizure is per se unreasonable, subject to a few well defined exceptions.” State v. Vel-asco, 248 Conn. 183, 189, 728 A.2d 493 (1999). “The state bears the burden of proving that an exception to the warrant requirement applies when a warrantless search has been conducted.” State v. Clark, supra, 255 Conn. 291.

“One recognized exception to the warrant requirement applies when a search is conducted incident to a lawful custodial arrest. . . . This exception permits a police officer to conduct a full search of an arrestee and to seize evidence as well as weapons.” (Citations omitted.) State v. Trine, 236 Conn. 216, 235-36, 673 A.2d 1098 (1996). “Thus, if the defendant’s arrest was lawful, the subsequent warrantless search of his person also was lawful.” State v. Velasco, supra, 248 Conn. 189. “Even if a search and seizure chronologically precede a formal arrest, the search and seizure may be constitutionally valid as long as the arrest and the search and seizure are substantially contemporaneous and are integral parts of the same incident.” (Emphasis added.) State v. Trine, supra, 236.

General Statutes § 54-lf (b) authorizes a police officer to conduct a warrantless arrest of “any person who the officer has reasonable grounds to believe has committed or is committing a felony.” “The phrase ‘reasonable grounds to believe’ is synonymous with probable cause.” State v. Velasco, supra, 248 Conn. 189. “The determination of whether probable cause exists under the fourth amendment to the federal constitution, and under article first, § 7, of our state constitution, is made pursuant to a to tality of circumstances test. . . . Probable cause exists when the facts and circumstances within the knowledge of the officer and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution to believe that a felony has been committed. . . . The probable cause test then is an objective one.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Clark, supra, 255 Conn. 292.

Our Supreme Court has consistently held that “[t]he quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. . . . The existence of probable cause does not turn on whether the defendant could have been convicted on the same available evidence. . . . [P]roof of probable cause requires less than proof by a preponderance of the evidence. . . . Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . The probable cause determination is, simply, an analysis of probabilities. . . . The determination is not a technical one, but is informed by the factual and practical considerations of everyday life on which reasonable and prudent [persons], not legal technicians, act. . . . Probable cause is not readily, or even usefully, reduced to a neat set of legal rules. . . . Reasonable minds may disagree as to whether a particular [set of facts] establishes probable cause.” (Citations omitted; internal quotation marks omitted.) Id., 292-93.

Moreover, in testing the amount of evidence that supports probable cause, it is not the personal knowledge of the arresting officer, but the collective knowledge of the law enforcement organization at the time of the arrest that must be considered. See State v. Dennis, 189 Conn. 429, 430-33, 456 A.2d 333 (1983); State v. Runkles, 174 Conn. 405, 410-11, 389 A.2d 730, cert. denied, 439 U.S. 859, 99 S. Ct. 177, 58 L. Ed. 2d 168 (1978); State v. Hedge, 59 Conn. App. 272, 274-75, 278-79, 756 A.2d 319 (2000); State v. Holder, 18 Conn. App. 184, 188, 557 A.2d 553 (1989).

In the present case, the Waterbury police department and, specifically, the members of the raid team executing the search and seizure warrant at the apartment on Elizabeth Street were aware, prior to the search and arrest of the defendant, that the purpose of the raid at the specified address was to search for and to seize narcotics, particularly heroin. Although Wright did not actually observe the defendant committing any crime involving narcotics or otherwise, Canale’s uncontro-verted testimony established that Canale had witnessed the defendant tossing to the floor an object containing what Canale believed to be heroin. At that moment, there was probable cause to justify the defendant’s arrest. See General Statutes § 54-lf (b) (authorizing war-rantless arrest by police of “any person who the officer has reasonable grounds to believe has committed or is committing a felony”).

Accordingly, when Wright entered the bedroom behind Canale and Canale informed him that the defendant was under arrest, the facts and circumstances within Wright’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a person of reasonable caution to believe that a felony had been committed. See State v. Clark, supra, 255 Conn. 292. Thus, under the totality of the circumstances and on the basis of the collective knowledge of the raid team, Wright had probable cause to arrest or to conduct a full search of the defendant to seize evidence as well as weapons. See id.; State v. Trine, supra, 236 Conn. 235-36; State v. Dennis, supra, 189 Conn. 432. It is not significant that the search and seizure by Wright preceded the defendant’s formal arrest, which was effected by another officer, because the events were substantially contemporaneous and integral parts of the same incident. See State v. Trine, supra, 236. The warrantless search of the defendant’s person was, therefore, a valid search incident to a lawful arrest.

We conclude that the warrantless search of the defendant’s person was lawful, as incident to a lawful arrest for which there was probable cause, independent of the search. Consequently, we conclude that the court’s findings and conclusions in connection with its denial of the defendant’s motion to suppress are legally and logically correct and supported by the facts set out in its oral decision. Accordingly, we affirm the judgment of conviction.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides in relevant part: “Any person who . . . possesses with the intent to sell or dispense ... to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter . . . shall be imprisoned . . . and may be fined . . . .”

       This is the defendant’s second appeal in this matter. In State v. Arline, 59 Conn. App. 414, 757 A.2d 631 (2000), the defendant appealed from the judgment of conviction of possession of narcotics with intent to sell, claiming that the trial court improperly had denied his request to poll the jury upon return of the verdict. In that appeal, we reversed the judgment of the trial court and remanded the case for a new trial. Id., 416.

       Following our decision in State v. Arline, 59 Conn. App. 414, 757 A.2d 631 (2000), the defendant was charged in an amended substitute information, filed on April 5, 2001.

       Prior to departing from police headquarters, the raid team was briefed regarding the nature and the target of the search and seizure warrant. The purpose of the raid at the specified address was to search for and to seize narcotics, particularly heroin, as well as money.

       Evidence at trial established that the object tossed to the floor by the defendant contained thirty glassine packets containing a powdery substance and that the powdery substance contained the narcotic heroin.

       Wright testified that he handcuffed the defendant because “[i]t was indicated to [him] by Detective Canale that [the defendant] was under arrest and otherwise [the defendant] still would have been handcuffed for officers’ safety.”

       Evidence at trial established that the substance contained the narcotic heroin.

       Evidence at trial established that the total sum of money seized from the defendant’s person was $789.

       Evidence at trial established that Nicholas DeMatteis, a detective with the Waterbury police department, made the formal arrest of the defendant, that day because he was the officer in charge of the case.

       Prior to sentencing, on May 22, 2001, the defendant filed a motion for a new trial on multiple grounds, including that he was denied a fair trial when the court denied his motion to suppress. The court denied the motion for a new trial as untimely. See Practice Book §§ 42-53, 42-54.

       The defendant made no claim, and does not claim on appeal, that the object containing the heroin that he tossed to the floor should be suppressed.

       The fourth amendment to the United States constitution, made applicable to the states through the fourteenth amendment, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       “Under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), an officer may forcibly stop a suspect and engage in a ‘stop and frisk’ investigation if the officer has a reasonable and articulable suspicion that the suspect has committed or is about to commit a crime. [A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Emphasis added; internal quotation marks omitted.) State v. Czyzewski, 70 Conn. App. 297, 303 n.7, 797 A.2d 643, cert. denied, 261 Conn. 911, 806 A.2d 49 (2002). “If, during the course of alawful investigatory detention, the officer reasonably believes that the detained individual might be armed and dangerous, the officer may undertake a patdown search to discover weapons.” (Internal quotation marks omitted.) State v. Clark, 255 Conn. 268, 281, 764 A.2d 1251 (2001); accord Terry v. Ohio, supra, 27.
      In addition to weapons, however, a police officer may lawfully seize “nonthreatening contraband that the officer feels during a lawful patdown search. . . . [I]nformation obtained through the sense of touch during a lawful patdown search may be used to establish such probable cause as is necessary to trigger an exception to the warrant requirement.” State v. Trine, 236 Conn. 216, 234, 673 A.2d 1098 (1996).

       The defendant asserts that for a search to be a valid search incident to a lawful arrest, the searching officer must know the basis for probable cause before conducting the search. The defendant contends that because it was Canale, and not Wright, who saw the defendant toss an object to the floor that Canale believed contained heroin, it was Canale who might have had probable cause to search and to arrest the defendant. Furthermore, the defendant argues that because Canale did not communicate the basis for the probable cause to Wright, and because Wright’s patdown search of the defendant did not create an independent basis for probable cause, Wright lacked authority to search inside the defendant’s pockets.

       General Statutes § 54-lf (b) provides: “Members of the Division of State Police within the Department of Public Safety or of any local police department or any chief inspector or inspector in the Division of Criminal Justice shall arrest, without previous complaint and warrant, any person who the officer has reasonable grounds to believe has committed or is committing a felony.”

       See footnote 9.


text:
    STATE OF CONNECTICUT v. JIMMY L. WIGGINS
    (AC 22217)
    Laveiy, C. J., and Foti. and Schaller, Js.

      Argued December 10, 2002
    officially released January 28, 2003

      Gilbert Shasha, for the appellant (defendant).

      James M. Ralls, assistant state’s attorney, with whom, on the brief, were David J. Smith, assistant state’s attorney, and Kevin T. Kane, state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant, Jimmy L. Wiggins, appeals from the judgment of conviction, rendered after a jury trial, of sale of cocaine in violation of General Statutes § 21a-277 (a). The sole issue on appeal is whether the court improperly refused to instruct the jury on cross-racial identification as requested by the defendant. We conclude that the defendant was not entitled to such an instruction and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the evening of November 4, 1998, Michael Cancellaro, an undercover police officer with the statewide narcotics task force, entered 423 East Main Street in Norwich to make a purchase of narcotics. The task force had obtained information that someone using several nicknames, one of which was “Billy,” was selling crack cocaine on the second floor of that address. Can-cellaro was “wired” and had $50 in state funds on his person.

When Cancellaro arrived at the second floor apartment, he knocked and a woman named Gwen answered the door. He told her he wanted to buy crack cocaine. Gwen responded that the dealer was away, but would return shortly and invited Cancellaro inside. After a short wait, Cancellaro heard someone enter the apartment and Gwen announced, “he’s here” and led Can-cellaro into a bedroom. A man who said his name was Billy was sitting on a bed. He was wearing a heavy green parka with the hood up. He had what appeared to be a Jamaican accent; he was a black male in his mid-twenties with a medium to dark complexion, medium build, round face and he stood about five feet, eight inches tall. The parties exchanged the $50 for a plastic bag containing crack cocaine. After leaving the apartment, Cancellaro rendezvoused with Norwich police Detective Christopher Ladd, the lead officer on the investigation. Cancellaro provided Ladd with the cocaine and a description of the person from whom he had purchased the cocaine. No arrest was made at that time.

As part of their follow-up investigation, the police conducted surveillance of 423 East Main Street and on November 11, 1998, Ladd saw someone matching the seller’s description exiting the building and driving away. A computer check of the vehicle’s license number revealed that the car was registered to the defendant, who was the only one observed at that location matching the description given by Cancellaro.

On November 13, 1998, Ladd showed Cancellaro a photographic array of eight black males of similar age and description as the defendant. Photograph number seven was of the defendant, and Cancellaro identified that photograph as the seller, “Billy.”

On the basis of that identification, the defendant was arrested and charged with the sale of cocaine on March 11, 1999, and subsequently was tried before a jury. Although Cancellaro was unable to identify the defendant at trial, he testified that he was sure that the man he identified in the photographic array was the seller.

The defendant filed a request to charge containing numerous instructions on identification. The issue on appeal involves the defendant’s request to charge, number eight, which sought an instruction as follows: “An important factor to be considered in assessing the reliability of an identification is whether the witness and the person identified are of the same or different races. In general, there is a much greater possibility of error where the races are different than where they are the same.”

Defense counsel argued at trial: “I think the jury needs to be told particularly that cross-racial identification is less rehable than in, than an intraracial identification in view of the fact that the evidence has made clear, the police officer, by observation, though not by testimony, is a Caucasian. And the citizen accused, and the perpetrator of the crime, both of those persons were black. And under those circumstances, I think it’s particularly appropriate to highlight to the jury that fact as commented on by the majority opinion and particularly as I think persuasively advanced by . . . the dissent.”*

The court refused to instruct as requested on the cross-racial identification, but did charge generally on identification, much of which was as requested by the defendant.

We first note that in reviewing the defendant’s claim that the court improperly denied his request for a jury instruction on cross-racial identification, we are adopting an abuse of discretion standard of review. We recognize that although a defendant may not be entitled to such a requested instruction as a matter of law, trial courts may, in the proper exercise of discretion, weigh the unique facts of a particular case in relation to an appropriate charge and conclude that an instruction on cross-racial identification is appropriate.

“Sound discretion, by definition, means a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law .... And [it] requires a knowledge and understanding of the material circumstances surrounding the matter .... In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling.” (Internal quotation marks omitted.) State v. Portee, 55 Conn. App. 544, 555, 740 A.2d 868 (1999), cert. denied, 252 Conn. 920, 744 A. 2d 439 (2000). On the basis of the record before us in this case, however, we cannot conclude that the defendant has sustained his burden of demonstrating an abuse of discretion in the court’s refusal to instruct on cross-racial identification.

Our Supreme Court “has specifically rejected the notion of special treatment for defendants in cross-racial identification situations . . . holding that the mere fact that a defendant is of a different race than a witness does not entitle the defendant to a special instruction on eyewitness identification at trial. State v. Cerilli, 222 Conn. 556, 571-72, 610 A.2d 1130 (1992).” State v. Porter, 241 Conn. 57, 135 n.80, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998). Courts in other jurisdictions also have refused to require such instructions.

Although cross-racial identification jury instructions may not be required, cross-examination and closing argument may be employed to demonstrate the problems that might arise as a result of cross-racial identification. Our review of the record indicates that the defendant was neither limited on his cross-examination of Cancellaro, nor on his argument regarding the reliability of that cross-racial identification.

The court’s instruction to the jury, read in its entirety, charged that as to credibility of witnesses, including police officers, the jury should consider opportunity and ability to observe, the circumstances of the viewing and the time period between the crime and the witness’ viewing of the array. The instruction concerned many identification factors. We conclude that the defendant cannot prevail on his claim that the court abused its discretion in not giving his requested instruction, nor, if he is making such a claim, that it was reasonably probable that the jury was misled by the court’s instruction with respect to identification.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “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 marijuana, 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.”

       The defendant did not file a motion to suppress relative to that identification by Cancellaro.

       The defendant’s argument before the court referred to State v. McClendon, 248 Conn. 572, 730 A.2d 1107 (1999) (Berdon, J., dissenting).

       The court instructed on identification as follows: “In arriving at a determination as to the matter of identification, you should consider all the facts and circumstances that existed at the time of the observation of the perpetrator by each witness. In this regard, the reliability of each witness is of paramount importance, since identification testimony is an expression of belief or impression by the witness. Its value depends upon the opportunity and ability of the witness to observe the offender at the time of the event, and to malee an accurate identification later. It is for you to decide how much weight to place upon such testimony.
      “In appraising the identification of any witness, you should take into account whether the witness had adequate opportunity and ability to observe the perpetrator on the date in question. This will be affected by such considerations as the length of time available to make the observations, the distance between the witness and the perpetrator, the lighting conditions at the time of the offense, whether the witness had known or seen the person in the past, and whether anything distracted the attention of the witness during the incident.
      “You should also consider the lapse of time between the occurrence of the crime and the photo identification by the witness. You should also consider the witness’ physical and emotional condition at the time of the incident, and the witness’ powers of observation in general. In short, you must consider the totality of the circumstances affecting identification. Remember, you must be satisfied beyond a reasonable doubt of the identity of the defendant as the one who committed the crime, or you must find him not guilty.”

       See Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002) (due process not violated by court’s refusal to give cross-racial instruction); Miller v. State, 759 N.E.2d 680 (Ind. App. 2001) (instruction proper only when defendant shows specific risk identification mistaken due to cross-racial factors); but see State v. Cromedy, 158 N.J. 112, 131-32, 727 A.2d 457 (1999) (requiring cross-racial instruction where only one eyewitness).

       During oral argument, the defendant agreed that his requested instruction did not ask the court to instruct that the jury “may consider, if it is appropriate to do so, whether the cross-racial nature of the identification affected its accuracy,” but rather asked the court to direct the jury to accept as a fact that there is a much greater possibility of error in cases of cross-racial identification.

       Although the defendant cites to United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972), he does not claim that the trial court improperly instructed as to eyewitness identification generally. A charge under Telfaire instructs the jury to consider, in evaluating the identification testimony of a witness, the following factors: The adequacy of the witness’ opportunity and capacity to observe the perpetrator, the length of time to observe the perpetrator, the proximity of the witness to the perpetration, whether the witness knew or saw the perpetrator prior to the incident, whether the identification was the product of the witness’ recollection and the credibility of the witness. Id., 558-59.


author: MIHALAKOS, J. FLYNN, J.,

text:
    WILLIAM J. LAVELLE v. ECOAIR CORPORATION ET AL.
    (AC 22357)
    Mihalakos, Flynn and Dupont, Js.
    Argued September 17, 2002
    officially released February 4, 2003

      Bernard Pellegrino, for the appellant (plaintiff).

      John T. Harris, with whom was Sheila A. Huddles-ton, for the appellees (defendants).
   Opinion

MIHALAKOS, J.

The plaintiff, William J. LaVelle, appeals from the trial court’s judgments in favor of the defendants, Ecoair Corporation (Ecoair) and its president, Peter S. Knudsen, Jr., in an action for breach of an employment contract. Additionally, the plaintiff appeals from the judgment in favor of Knudsen on Knudsen’s counterclaim for the repayment of a loan made to the plaintiff. On appeal, the plaintiff claims that the court improperly found that (1) the terms of a proposed employment agreement had neither been agreed to nor adopted by the parties, (2) the plaintiff was not entitled to severance pay under the terms of a letter agreement, (3) Ecoair was entitled to offset its obligation to the plaintiff for vacation pay by the amount of insurance benefits it paid on his behalf after his employment with Ecoair terminated, and (4) the plaintiffs debt to Knudsen was due and payable. We affirm the judgment of the trial court on the complaint and on the counterclaim.

The following undisputed facts and procedural history are relevant to our resolution of the plaintiffs appeal. In 1991, the plaintiff began working for Ecoair, providing marketing, fund-raising and management services for the company. The plaintiff received shares of Ecoair stock in lieu of salary until the latter part of 1992, when he began receiving a salary. In 1993, the plaintiff purchased additional shares of Ecoair stock.

Subsequently, the plaintiff and Ecoair formalized their arrangement by entering into a signed, written employment agreement dated December 13,1993 (1993 agreement), which provided, among other things, for the plaintiffs employment as Ecoair’s executive vice president and for his receipt of an annual salary of $132,500. The 1993 agreement contained a “termination for cause” provision and a provision permitting nonre-newal of the agreement by either party on an annual basis after proper notice (nonrenewal provision), but it did not include a termination without cause provision, nor did it provide for any severance pay. Additionally, the 1993 agreement contained a provision governing modification of its terms (modification provision).

In 1993 and 1994, Ecoair’s board of directors consisted of Knudsen, Ecoair’s president; the plaintiff, its executive vice president; and Richard D. Crane, its treasurer and chief financial officer. In late 1994 or early 1995, Knudsen asked Crane and the plaintiff to resign from Ecoair’s board at a meeting scheduled for February 17, 1995.

In early 1995, Crane contacted an attorney for Ecoair, John Clark, to discuss the effects of the proposed resignations from the board. Attorney Clark prepared drafts of new employment agreements for Crane and the plaintiff, respectively (1995 agreements).

On February 17, 1995, Crane met with Knudsen and presented unexecuted copies of the 1995 agreements to him. Crane also submitted a conditional letter of resignation from the board and expressed concerns regarding his and the plaintiffs rights in the event that they were ever terminated without cause. Knudsen asked Crane to take back his conditional letter of resignation and to submit an unconditional resignation from the board. In turn, Knudsen furnished letters to Crane and to the plaintiff discussing, among other things, the availability of severance pay in the event of a termination without cause (letter agreement).* Thereafter, on February 17, 1995, the plaintiff and Crane submitted signed letters of resignation from Ecoair’s board of directors, and the board accepted their resignations. Subsequently, on February 27, 1995, attorney Clark forwarded revised drafts of the 1995 agreements to the plaintiff and to Crane.

In 1995, the plaintiffs annual salary increased from $132,500 to approximately $165,625. In January, 1996, however, Ecoair’s board of directors compensation committee voted to reduce the salaries of the plaintiff, Crane and Knudsen. Specifically, the plaintiffs salary was reduced from $165,625 to $100,000.* **

The plaintiff told Knudsen that he and his family could not afford such a substantial reduction in salary. In response, Knudsen offered to loan the plaintiff $6500 per month from Knudsen’s personal funds, for a total of $78,000 over the course of the year in 1996. There is no written agreement as to the terms of repayment of the loan. The parties, however, agree that the loan was to be repaid to Knudsen free of interest when the plaintiff sold his Ecoair stock. The plaintiff accepted the total amount of $78,000 in loan funds. The plaintiff has not sold any of his stock since the loan was made and admits that he owes Knudsen $78,000.

The plaintiffs employment relationship with Ecoair continued until 2000. By a letter dated September 11, 2000, Ecoair gave the following notice to the plaintiff: “In accordance with paragraph [one] of the [e]mployment [agreement between you and Ecoair Corp. dated December 13,1993, Ecoair is hereby notifying you of its intention not to renew this [e]mployment [a]greement.” The letter was signed by Knudsen in his capacity as Ecoair’s president and delivered by Knudsen to the plaintiff. Thereafter, on December 12, 2000, the plaintiffs employment with Ecoair terminated.

In 2001, the plaintiff commenced an action against Ecoair and Knudsen in the Superior Court alleging, among other things, wrongful termination of the 1995 agreement, and breach of the verbal and written employment terms and conditions. Knudsen interposed a counterclaim in the amount of $78,000, representing the loan in that amount made to the plaintiff during 1996. Following a trial to the court, the court issued a memorandum of decision, rendering judgment in favor of the defendants on the complaint and in favor of Knudsen on his counterclaim. This appeal followed. Additional facts will be set forth as necessary.

Our review of the plaintiffs appeal is governed by the well established principle that “an appellate court will overturn the factual findings of a trial court only if these findings are clearly erroneous. ... A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. In applying the clearly erroneous standard to the findings of a trial court, we keep constantly in mind that our function is not to decide factual issues de novo. Our authority, when reviewing the findings of a judge, is circumscribed by the deference we must give to decisions of the trier of fact, who is usually in a superior position to appraise and weigh the evidence.” (Citation omitted; internal quotation marks omitted.) Douthwright v. Northeast Corridor Foundations, 72 Conn. App. 319, 323, 805 A.2d 157 (2002).

I

The plaintiffs first claim on appeal is that the court improperly found that the terms of the 1995 agreement had neither been agreed to nor adopted by the parties. Specifically, the plaintiff argues that the 1995 agreement modified and replaced the 1993 agreement, controlled his employment relationship with Ecoair since February, 1995, and, therefore, sets forth the terms for his recovery upon the termination of his employment. Furthermore, he contends that although no signed copy of the 1995 agreement ever was introduced into evidence at trial, the court could have concluded from the weight of other evidence that the parties had agreed to its terms. In response, the defendants argue that the court reasonably found that the parties never agreed to adopt the 1995 agreement. We agree with the defendants.

“For a valid modification to exist, there must be mutual assent to the meaning and conditions of the modification and the parties must assent to the same thing in the same sense. . . . Modification of a contract may be inferred from the attendant circumstances and conduct of the parties. . . .

“Whether the parties to a contract intended to modify the contract is a question of fact. . . . The resolution of conflicting factual claims falls within the province of the trial court. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses].” (Citations omitted; internal quotation marks omitted.) Herbert S. Newman & Partners, P.C. v. CFC Construction Ltd. Partnership, 236 Conn. 750, 761-62, 674 A.2d 1313 (1996).

In its memorandum of decision, the court sought to determine whether the 1995 agreement modified or replaced the 1993 agreement as the controlling employment contract between the parties. The court noted the following language contained in the modification provision of the 1993 agreement: “[n]o modification, amendment, extension or alleged waiver of this [agreement or any provision hereof shall be binding upon [Ecoair] or [the plaintiff] unless in writing and signed by both [Ecoair] and [the plaintiff].” Furthermore, the court noted that Knudsen denied ever signing any version of the 1995 agreement and, although the plaintiff testified that a signed version once existed, he failed to produce an executed copy and was unable to say which one of two versions ever had been signed.

The court determined that it was required to examine the surrounding circumstances for indications that the parties acted in accordance with the terms of the 1995 agreement or in other ways to suggest that they had adopted its terms. The court considered the testimony of the parties and witnesses at trial for evidence to support execution, adoption or ratification of the 1995 agreement. It found that the testimony of the witnesses at trial failed to support the plaintiffs assertion that the 1995 agreement had been executed. Moreover, it specifically stated: “The court does not find the plaintiffs explanation about the disappearance of the signed [1995] agreement credible. He suggests that he had such a copy and that it mysteriously disappeared from his file or from the company’s file. Crane had no signed copy and could not recall signing one, [and] the attorney [Clark] who prepared it had no record of the execution of a final draft . . . .”

The court also found an absence of evidence of actions taken or routines followed by the parties that adhered to the 1995 agreement, tending to support the plaintiffs allegation that the parties acted as though it were in effect. It considered the salary and vacation provisions of the drafts of the 1995 agreement, which provided for a salary of $165,625 per annum with annual increases and six weeks annual vacation time. The court found that the actual salary received by the plaintiff after 1995 demonstrated that the 1995 agreement’s salary provisions had not been implemented, and, furthermore, that the plaintiff never took the six weeks of vacation set forth in the drafts. The court concluded that no written or oral modification of the 1993 agreement was effected by the 1995 agreement.

Having reviewed the entire record, we conclude that there is ample evidence to support each of the factual findings made by the court. The court reasonably found that the evidence and the record, as a whole, failed to demonstrate the parties’ mutual assent to the meaning and conditions of the 1995 agreement. Consequently, we conclude that the court’s finding that the 1995 agreement had neither been agreed to nor adopted by the parties was not clearly erroneous. Accordingly, we reject the plaintiff’s first claim.

II

The plaintiffs second claim is that the court improperly found that he was not entitled to severance pay under the terms of the letter agreement from Knudsen dated February 17, 1995. The plaintiff argues that because the court found that the letter agreement modified the 1993 agreement, the letter agreement entitles him to severance pay for one year subsequent to his termination. Specifically, the plaintiff contends that the letter agreement’s provision for severance pay operates in concert, with the nonrenewal provision of the 1993 agreement and that the only way the 1993 agreement, as modified, could be terminated without cause was by way of nonrenewal. Furthermore, the plaintiff maintains that the evidence does not support the court’s alternate finding that Ecoair was not required to pay severance to the plaintiff because it lacked an ongoing ability to pay.

In response, the defendants argue that the court reasonably found that the plaintiff was not entitled to severance pay under the terms of the 1993 agreement, as modified by the letter agreement from Knudsen. The defendants contend that the letter agreement’s provision for severance pay operates separately from the nonrenewal provision of the 1993 agreement and that it was not implicated because the plaintiffs employment was not terminated without cause but was simply not renewed. Alternatively, the defendants argue that even if the letter agreement’s provision for severance pay was implicated, the court properly found that Ecoair was not obligated to pay severance because Ecoair lacked an ongoing ability to pay. We agree with the defendants.

In its memorandum of decision, the court found that the sole modification to the 1993 agreement was contained in the letter agreement from Knudsen to the plaintiff dated February 17, 1995, but that the letter agreement did not create a severance pay requirement under the circumstances of the case, on two independent grounds. First, the court found that the letter agreement’s termination without cause provision neither replaced the 1993 agreement’s nonrenewal provision nor added a severance pay requirement to that nonrenewal provision. The court based its finding on the words contained in the letter agreement, finding significant the statement that Ecoair agreed to modify “the termination provisions of [the plaintiffs] agreement . . . .” The court explained that the nonre-newal provision of the 1993 agreement was included under the paragraph labeled “employment,” rather than under the paragraphs containing the word “termination” in their labels. Thus, the court determined that the letter agreement’s severance pay provisions were not implicated under the circumstances because the parties’ employment relationship ended in accordance with the nonrenewai provision of the 1993 agreement. We do not resolve that question of law, which is based on an interpretation of the parties’ employment agreement and the letter, in light of the court’s alternate determination.

Second, and critical to our resolution of the plaintiffs second claim, the court found that even if the letter agreement’s severance pay provisions were implicated by the manner in which the plaintiffs employment was terminated, the plaintiff was not entitled to such payments because the letter agreement expressly conditioned Ecoair’s payment obligation on its “ongoing ability to pay.” The court found that in 2000 and at the time of trial, Ecoair operated with substantial losses and lacked an “ongoing ability to pay” severance to the plaintiff. The court’s finding was based in part on Knudsen’s testimony regarding Ecoair’s past, present and future financial difficulties, and in part on Ecoair’s income statement covering the period from February, 2000, through February, 2001.

Even if we were to agree with the plaintiffs argument that the letter agreement’s severance pay provisions were implicated by virtue of the termination of his employment, we cannot ignore the court’s factual finding that Ecoair lacked an ongoing ability to pay. In his appellate brief, the plaintiff disputes that finding and advances various interpretations of Ecoair’s income statement, which he claims demonstrates Ecoair’s ongoing ability to pay. All that we have before us are repeated assertions in the plaintiffs brief that ask us to ignore the court’s finding and to adopt his interpretation of the evidence. In effect, the plaintiff would have us decide this case on facts directly opposite to those found by the court. “It is axiomatic that this court cannot find facts. This case must be reviewed on the facts found by the trial court.” Anquillare, Lipnicki, Ruocco & Co. v. VCR Realty Associates, 72 Conn. App. 821, 825, 808 A.2d 682 (2002).

In light of the evidence and pleadings of record, we do not find the court’s factual findings clearly erroneous. There is evidence to support the court’s findings and, after review, we are not left with the definite and firm conviction that a mistake has been made. Accordingly, we reject the plaintiffs second claim on the basis that the letter agreement for severance pay was contingent on Ecoair’s ongoing ability to pay.

Ill

Next, the plaintiff claims that the court improperly found that Ecoair was entitled to offset its obligation to pay him for unused vacation time by the amount of insurance benefits it paid on his behalf after his employment with Ecoair terminated. Specifically, the plaintiff argues that Ecoair voluntarily paid his health insurance premiums for two months after his employment ended, in January and February, 2001, and, therefore, Ecoair was not entitled to a setoff for its voluntary payments. In response, the defendants argue that the court reasonably relied on the testimony of Richard Wisot, Ecoair’s former chief financial officer, as the basis for its finding that Ecoair was entitled to the setoff. The defendant maintains that the court reasonably found that Ecoair was entitled to offset its obligation for vacation pay by the amount of insurance benefits it paid for the plaintiff subsequent to the end of his employment. We agree with the defendants.

In its memorandum of decision, the court found that although the plaintiff was due an amount of $3636.34 from Ecoair as payment for unused vacation days, that amount was to be offset by the amount of funds advanced by Ecoair toward the plaintiffs health insurance premiums. The court ultimately found that the plaintiff was entitled to the balance amount of $151.63. As the basis for its determination, the court explained that it relied on Wisot’s testimony and found that the plaintiff had failed to give Ecoair notice to discontinue his coverage.

At trial, Wisot testified that insurance premiums were paid at the beginning of each month and that Ecoair could cancel insurance coverage only at the end of the month for the following month. He testified that Ecoair already had paid the plaintiffs health insurance premiums for December, 2000, because the plaintiffs employment with Ecoair continued until mid-December. Moreover, he testified that in December, 2000, shortly after the plaintiffs employment with Ecoair ended, Ecoair sent a notice to the plaintiff, explaining that he was required to notify the company if he wanted to discontinue his insurance benefits. Furthermore, Wisot testified that if the plaintiff had notified Ecoair that he wanted to terminate his coverage, Ecoair would not have been obligated to continue paying the premiums. Finally, Wisot testified that prior to February, 2001, he had not been instructed to cancel the plaintiffs insurance.

On appeal, the plaintiff does not assert that Ecoair failed to notify him regarding the continuation or termination of his health insurance premiums. In his brief, the plaintiff admits that he paid Ecoair for his health insurance coverage for the month of March, 2001, and that he thereafter notified Ecoair that he no longer would be purchasing insurance through the company.

After reviewing the entire record, we are not left with the definite and firm conviction that a mistake has been made. We conclude that there was evidence to support the court’s finding that Ecoair was entitled to offset its obligation for vacation pay by the amount of insurance benefits it paid on behalf of the plaintiff after the employment relationship between the parties ended. Consequently, we conclude that the court’s finding to that effect was not clearly erroneous. Accordingly, we reject the plaintiffs third claim.

IV

The plaintiffs final claim challenges the court’s finding in favor of Knudsen on Knudsen’s counterclaim. The plaintiff claims that the court improperly found that his promise to repay Knudsen was illusory and made in bad faith, and that his $78,000 debt to Knudsen was due and payable. As previously set forth, the repayment terms of the loan were that the $78,000 was due and payable without interest upon the sale of the plaintiffs Ecoair stock. The plaintiff argues that he has not sold any of his Ecoair stock since the time of the loan and, therefore, under the clear and undisputed repayment terms agreed upon by the parties, his repayment obligation has not yet been triggered.

In response, Knudsen does not contend that the plaintiff sold any shares of his Ecoair stock. Instead, Knudsen argues, among other things, that notwithstanding the court’s determination regarding the illusory nature of the plaintiffs promise, the court properly determined that the agreement between the parties failed to specify a definite time limit for the plaintiffs performance and, consequently, the court implied a reasonable time for performance. He maintains that the court properly found that the plaintiff had failed to repay the loan within a reasonable time, and concluded that the debt was due and payable. We agree.

In its memorandum of decision, the court concluded that the plaintiffs debt to Knudsen was due and payable on two grounds. First, it determined that the plaintiffs promise to repay Knudsen upon the sale of his stock was illusory. Alternatively, the court found that the agreement between the parties failed to specify a definite time limit for the plaintiffs performance, and, therefore, the court implied into the agreement an obligation to repay the loan within a reasonable time. The court stated: “Even if one adopts the plaintiffs argument that the payment date arrives when the shares in the plaintiffs name are sold, in the absence of any specific time limit for that to occur, the loan should certainly be repaid within a reasonable time.” The court found that the plaintiff enjoyed the use of the loaned funds for five years and that five years was a reasonable time. The court concluded that in “applying equitable principles, the debt is now due and payable.”

“When the terms of a contract’s time of performance are indefinite . . . [t]he result generally reached is that the time is neither unlimited nor discretionary. . . . [T]he promised performance must be rendered within a reasonable time.” (Internal quotation marks omitted.) DeCarlo & Doll, Inc. v. Dilozir, 45 Conn. App. 633, 643, 698 A.2d 318 (1997). “What is a reasonable length of time is ordinarily a question of fact for the trier.” Parkway Trailer Sales, Inc. v. Wooldridge Bros., Inc., 148 Conn. 21, 26, 166 A.2d 710 (1960); see Colby v. Burnham, 31 Conn. App. 707, 715, 627 A.2d 457 (1993).

The present case is materially indistinguishable from DeCarlo & Doll, Inc. v. Dilozir, supra, 45 Conn. App. 633. In DeCarlo & Doll, Inc., we held that when the terms of a contract’s time for performance axe indefinite, the promised performance must be rendered within a reasonable time. Id., 643. The plaintiff in DeCarlo & Doll, Inc., sought to recover payment from the defendant under a contract pursuant to which the plaintiff performed engineering and technical services for development of the defendant’s self storage facility. Id., 635-37. The defendant argued that his payment obligations under the contract were conditioned on his obtaining financing, which was an event that never occurred. Id., 637-38. The defendant maintained that the contract clause “[s]ubject to payment ... at time of financing” excused his performance. Id. We explained that “the clause ‘subject to payment ... at time of financing’ was not a condition on which payment was contingent.” Id., 641. Rather, “[t]his clause set forth the time, which was in the sole control of the defendant, when payment was to be made by the defendant.” Id. We determined that “this obligation was in the control of the defendant, and, therefore, he [would] not be excused by his nonperformance.” Id., 642. Moreover, we concluded that “[b]ecause financing was never obtained by the defendant, the time of payment should have been within a reasonable time.” Id., 643.

In the present case, the plaintiff argues, in essence, that his payment obligations under the loan agreement are conditioned or contingent on the sale of his Ecoair stock, which is an event that has not yet occurred. The court stated, however, that u[e]ven if one adopts the plaintiffs argument that the payment date arrives when the shares in the plaintiffs name are sold, in the absence of any specific time limit for that to occur, the loan should certainly be repaid within a reasonable time.” The court’s conclusion comports with our holding in DeCarlo & Doll, Inc. v. Dilozir, supra, 45 Conn. App. 643. Moreover, in the present case, the court made the factual finding that the plaintiff enjoyed the use of the loaned funds for five years and that five years was a reasonable time. In light of the record as a whole, we conclude that the court’s finding that the plaintiffs debt was due and payable because a reasonable time had expired was not clearly erroneous. Accordingly, we reject the plaintiffs final claim.

As to the concerns expressed by the dissent, we respectfully note that we do not consider our application of DeCarlo & Doll, Inc., in the present case to be an extension of that decision to individual employment contract situations. In the present case, there is no employment contract between Knudsen and the plaintiff; Knudsen both loaned the funds and brought the counterclaim in his personal, individual capacity. In addition, we respectfully disagree with other distinctions drawn by the dissent between DeCarlo & Doll, Inc., and the present case. In the present case, as in DeCarlo & Doll, Inc., it is uncertain whether the time for payment ever would arrive; in the present case, it is uncertain whether the plaintiff himself ever would decide to sell his stock, and in DeCarlo & Doll, Inc., it was uncertain whether the defendant ever would receive financing. The dissent maintains that in the present case, the plaintiffs payment obligation must eventually arise because upon the plaintiffs death, there would be a sale or some other passing of title to the stock that is equivalent to a sale. We note that a transfer of title to the stock upon the plaintiff’s death, by devise or through the intestacy laws, is not equivalent to a sale, and nothing in the record indicates that upon the plaintiffs death, the stock must be sold.

The judgment is affirmed.

In this opinion DUPONT, J., concurred.

FLYNN, J.,

dissenting in part. I concur with the affirmance of the judgment on the complaint. I respectfully dissent from the majority holding on the counterclaim found in part IV of the majority opinion. I would reverse the trial court’s determination that the plaintiffs debt to the defendant Peter S. Knudsen, Jr., was due and payable.

I begin by expressing my opinion that permitting the counterclaiming Knudsen to demand payment of his note prior to the plaintiffs sale of his stock interest in his employer’s corporation, which was the agreed on triggering event requiring payment, is unfair to the plaintiff. The plaintiff was induced to remain in employment at a salary reduced by $65,000 annually from what had been agreed between him and his employer, and did so until discharged. He should not be deprived of the loan terms for which he bargained which were the return consideration for that performance.

Second, I do not think DeCarlo & Doll, Inc. v. Dilozir, 45 Conn. App. 633, 698 A.2d 318 (1997), should be extended and applied to individual employment contract situations where money is lent to the employee and partial consideration in the form of accepting or, as in this case, continuing in employment has been received by the noteholder at the time of the loan. The plaintiffs agreement to remain in employment, and at a lesser salary than agreed, was that partial consideration. In contrast, DeCarlo & Doll, Inc., did not involve an individual employment contract. See id. That case is further distinguishable because it was not certain that the mortgage financing event triggering payment of that consideration to the plaintiff in that case would ever happen. Id., 643.

Third, I disagree with the trial court’s holding that the promise to repay was illusory and find no justification for the court’s imposing a “reasonable time” for payment to which the parties had not agreed. Maturity of the loan and the plaintiffs obligation to pay it in full, unlike the defendant’s mortgage financing in DeCarlo & Doll, Inc., is an event certain to happen even though the time of its triggering is not certain. This is so if for no other reason than that upon the death of the plaintiff borrower there would be a sale or some other passing of title to the stock equivalent to a sale which would trigger the obligation to repay principal.

In order to keep the plaintiff employed by the defendant corporation as a key executive officer in his company after reducing his annual pay by $65,000 per year, the defendant Khudsen, a majority stockholder, agreed to lend the plaintiff $6500 per month without interest, which was not to be paid until the plaintiff sold his stock. The plaintiff has never sold the stock. The defendant Knudsen got what he bargained for in that the plaintiff continued in employment at much less pay until his discharge and remained obligated to repay the note. There was nothing illusory about the plaintiffs performance. Unfortunately, if the judgment for the defendant on his counterclaim stands, there is something illusory in what the defendant promised. Instead of the debt maturing, as the parties agreed, only when the plaintiff sold his stock in the corporation which employed him, it is deemed due under the judgment in five years from the note date. This to me seems an unfair result where continued employment and a pay “giveback” was induced by the agreement that was explicit about the future event that would trigger payment.

       Paragraph one of the 1993 agreement (nonrenewal provision) provides: “1. Employment. [Ecoair] hereby employs [the plaintiff] and [the plaintiff] hereby accepts employment with [Ecoair] upon the terms and conditions herein set forth. Such employment is for successive terms of one (1) year, unless sooner terminated as provided in this [agreement. Each one-year term shall be automatically renewed unless one party gives notice to the other party of his or its intention not to renew this agreement not less than ninety (90) days before the expiration of the then current one (1) year term.”

       Paragraph fifteen of the 1993 agreement (modification provision) provides: “15. Modification: Entire Agreement. No modification, amendment, extension or alleged waiver of this [a]greement or any provision hereof shall be binding upon [Ecoair] or [the plaintiff] unless in writing and signed by both [Ecoair] and [the plaintiff]. This [agreement constitutes the entire agreement and understanding between [Ecoair] and [the plaintiff] relating to the latter’s employment, and supersedes and replaces all prior agreements and understandings, written or oral, relative to such employment.”

       Knudsen’s letter to the plaintiff dated February 17, 1995, was signed by Knudsen and states in relevant part: “In accordance with our discussions regarding your employment agreement with Ecoair, the Company has agreed to modify the termination provisions of your agreement, so that in the event of termination without cause you will have the right to . . . severance at full pay subject to Ecoair’s ongoing ability to pay will be thirty-six months if terminated in 1995, twenty-four months if terminated in 1996, and twelve months thereafter.”

       At trial, the plaintiff testified about his belief that a version of the 1995 agreement had been executed and that it thereafter governed the terms of his employment relationship with Ecoair. Crane testified that he did not recall ever signing any draft of the 1995 agreement. The plaintiff and Crane testified, however, that they were unable to locate a signed copy of any version of the 1995 agreement.

       The plaintiff testified that from 1996 through 2000, his annual salary remained at $100,000.

       See footnote 1.

       Specifically, the plaintiff alleged the following four counts in his amended complaint, the first two of which are involved in this appeal: Count one alleged that Ecoair wrongfully terminated the 1995 agreement; count two alleged that Ecoair breached employment terms and conditions that had been agreed on by the parties both verbally and in writing; count three alleged that Knudsen acted in bad faith, and interfered with the employment relationship between the plaintiff and Ecoair; and count four alleged that Knudsen breached fiduciary duties. The plaintiffs fourth count was dismissed, and neither his third nor fourth counts are at issue in this appeal.

       In its memorandum of decision, the court stated: “If the 1993 [agreement] is found to be the controlling document, then [the] letter dated September 11, 2000 ... to the plaintiff would be effective as a nonrenewal of that contract, effectively limiting any recovery by the plaintiff to the terms of the 1993 [agreement].” The court determined, among other things, that: (1) no written or oral modification of the 1993 agreement was effected by the 1995 agreement; (2) the sole modification to the 1993 agreement was contained in the letter agreement from Knudsen to the plaintiff dated February 17, 1995, although that letter agreement did not create a severance pay requirement under the circumstances of the case; (3) pursuant to the 1993 agreement, the plaintiff was entitled to an amount of $3636.34 from Ecoair as payment for unused vacation days; however, that amount was to be offset by the amount of funds advanced by Ecoair toward the plaintiffs health insurance premiums subsequent to the termination of his employment and, therefore, the plaintiff was entitled to the balance of $151.63; and (4) the plaintiffs debt to Knudsen on the 1996 loan in the amount of $78,000 as alleged in Knudsen’s counterclaim was due and payable.

       See footnote 4.

       See footnote 3.

       We need not address the issue of whether the letter agreement effectively modified the 1993 agreement because the parties have not addressed that issue. We note that the plaintiffs second claim and the parties’ arguments with respect to that claim assume that the letter agreement effectively modified the 1993 agreement.

       Rather, the court found that the letter agreement created a mechanism for Ecoair to terminate the plaintiffs employment at any time without cause, but that if Ecoair exercised that right, it would be obligated to comply with the terms providing for severance pay specified in the letter agreement. In contrast, the court found that the 1993 agreement provided a mechanism for nonrenewal of the parties’ employment relationship that was available to either party, but that if either party sought to invoke that mechanism, they would be required to notify the other party at least ninety days prior to the expiration of the then current one year term of employment.

       The portion of the court’s memorandum on that issue states: “There remains in dispute the question of whether the amount advanced by Ecoair to pay the plaintiffs health insurance premiums should offset the amount due the plaintiff for nine vacation days, $3636.34. That figure is not disputed.
      “Relying on the testimony of [Richard] Wisot, the court concludes that it should. The plaintiff did not give Ecoair notice to end his coverage and Ecoair made the payments which created a benefit available to the plaintiff, though he may not have enjoyed the actual use of it.
      “The court concludes the plaintiff is entitled to the balance of $151.63 offered by the defendant.”

       At trial, the parties agreed that if the 1993 agreement was found to be the operative employment contract, then under that agreement, at the time that the plaintiffs employment ended, the plaintiff was entitled to $3636.34 representing nine days of pay for unused vacation time. Prior to trial, Ecoair tendered payment of $1354.71 for vacation pay owed to the plaintiff. Ecoair claimed, however, that it was entitled to a setoff of $2130 for the amount it paid for health insurance benefits for the plaintiff for two months after his employment ended. Therefore, Ecoair agreed to pay the balance amount of $151.63 from the first payroll after trial.

       At oral argument on the appeal, Knudsen’s counsel argued that the plaintiffs daughters’ sale of stock triggered the plaintiffs repayment obligation because the plaintiff transferred the stock to his daughters after he received a substantial portion of the $78,000 loan, and his daughter’s sale of those shares benefited the plaintiff. Subsequently, this court has determined that the argument advanced by Knudsen’s counsel was not premised on a proper recitation of the facts. Following oral argument, Khudsen’s counsel submitted a letter to this court dated September 17,2002, conceding that the plaintiff did not transfer stock to his daughters after receiving any portion of the loan.

       The court explained that an illusory promise exists when a condition of the contract is completely within the control ol' the promisor. The court determined that the condition in the parties’ loan agreement — repayment upon the sale of stock — was wholly within the control of the plaintiff, the promisor. The court recognized that an implied obligation to use good faith is enough to avoid the finding of an illusory promise, citing Sicaras v. Hartford, 44 Conn. App. 771, 781, 692 A.2d 1290, cert. denied, 241 Conn. 916, 696 A.2d 340 (1997). The court stated, however, that it could not find that the plaintiff acted in good faith “in entering into the loan agreement which permitted him to unreasonably delay or totally avoid payment,” and that “[i]t could not have been the intention of the parties when the loan was made to produce an inequitable result which shocks the conscience . . .