text:
    STANLEY MACHNIK v. COMMISSIONER OF MOTOR VEHICLES
    (AC 20120)
    Landau, Mihalakos and Pellegrino, Js.
    Submitted on briefs December 4
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SAMUEL E. DIXON, JR. v. MARY E. COUGHLIN ET AL.
    (AC 20837)
    Landau, Mihalakos and Pellegrino, Js.
    Submitted on briefs December 4
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ERIKA KRINOCK
    (AC 19696)
    Lavery, C. J., and Zarella and Dupont, Js.
    Argued December 6
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.


text:
    FAIRFIELD PLUMBING AND HEATING SUPPLY CORPORATION v. JEFFERSON A. SCINTO
    (AC 19547)
    Foti, Schaller and Spear, Js.
    Submitted on briefs December 4
    officially released December 26, 2000
   Per Curiam.

The judgment is affirmed.


text:
    EMPIRE INSURANCE COMPANY v. BRIA RUBBISH AND RECYCLING, INC.
    (AC 19979)
    Foti, Landau and Pellegrino, Js.
    Argued December 8, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. CRAIG MCCONNEAUGHEY
    (AC 19339)
    Laveiy, C. J., and Schaller and Hennessy, Js.
    Argued December 12, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    MCCOLLAM REALTY v. J. C. MARTIN
    (AC 19730)
    Foti, Pellegrino and O’Connell, Js.
    Argued December 14, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SALVATORE D. GIANNITTI v. EMBALMERS’ SUPPLY COMPANY
    (AC 19886)
    Lavery, C. J., and Spear and Daly, Js.
    Argued December 14, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    RAMON RIVERA v. COMMISSIONER OF CORRECTION
    (AC 19911)
    Lavery, C. J., and Foti and Zarella, Js.
    Argued December 13, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    ARTHUR SCIORTINO ET AL. v. TOWN OF TRUMBULL
    (AC 20327)
    Landau, Schaller and Hermessy, Js.
    Argued December 12, 2000
    officially released January 9, 2001
    Plaintiffs appeal from the Superior Court in the judicial district of Fairfield, Nadeau, J.

   Per Curiam.

The judgment is affirmed.


text:
    KIMBALL E. DOOLEY v. CINDA S. DOOLEY
    (AC 20557)
    Lavery, C. J., and Zarella and Dranginis, Js.
    Submitted on briefs December 4, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    VICTOR CIVIE ET AL. v. OAK LANE COUNTRY CLUB, INC.
    (AC 20094)
    Mihalakos, Pellegrino and Spallone, Js.
    Argued December 15, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. KUBA ASSEGAI
    (AC 19105)
    Mihalakos, Pellegrino and Spallone, Js.
    Argued December 15, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. THOMAS CENTENO
    (AC 20184)
    Foti, Mihalakos and O’Connell, Js.
    Submitted on briefs December 14, 2000
    officially released January 9, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STEPHEN CASSIDY v. COMMISSIONER OF CORRECTION
    (AC 20061)
    Landau, Spear and Daly, Js.
    Argued January 11
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    LYNN MARIE SOBOWICZ v. JOSEPH S. SOBOWICZ
    (AC 20193)
    Lavery, C. J., and Spear and O’Connell, Js.
    Submitted on briefs January 12
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    ALBERT EADDY v. COMMISSIONER OF CORRECTION
    (AC 19532)
    Foti, Schaller and Stoughton, Js.
    Argued January 10
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JANE A. BADMAN v. JOHN BADMAN, JR.
    (AC 20622)
    Foti, Dranginis and Daly, Js.
    Submitted on briefs January 12
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    RALPH ROCKY BELLO v. TOWN OF WEST HAVEN ET AL.
    (AC 20675)
    Lavery, C. J., and Spear and O’Connell, Js.
    Submitted on briefs January 12
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    RITA LUCIANO v. COMMISSIONER OF CORRECTION
    (AC 20423)
    Lavery, C. J., and Foti and Dranginis, Js.
    Argued January 11
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    LIBERTY MUTUAL INSURANCE COMPANY v. PHILLIPPE RACINE ET AL.
    (AC 20419)
    Lavery, C. J., and Landau and Freedman, Js.
    Argued January 16
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    STATE OF CONNECTICUT v. ANTHONY MONTEFUSCO
    (AC 19584)
    Lavery, C. J., and Landau and Freedman, Js.
    Argued January 16
    officially released February 6, 2001
   Per Curiam.

The judgment is affirmed.


text:
    LOREN CASERTANO ET AL. v. ALDO ADDARIO, JR.
    (AC 19983)
    Lavery, C. J., and Mihalakos and Shea, Js.
    Argued January 18
    officially released February 13, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DONNA KEMP v. HALDAN E. CONNOR, JR.
    (AC 20205)
    Speax, Dranginis and Hennessy, Js.
    Argued January 19
    officially released February 13, 2001
   Per Curiam.

The judgment is affirmed.


text:
    DANIEL CLARK v. COMMISSIONER OF CORRECTION
    (AC 20459)
    Lavery, C. J., and Mihalakos and Stoughton, Js.
    Argued January 24
    officially released February 13, 2001
   Per Curiam.

The judgment is affirmed.


text:
    JOHN SAKON v. MORIN PAVING, INC.
    (AC 20149)
    Foti, Schaller and Dupont, Js.
    Argued January 25
    officially released February 13, 2001
   Per Curiam.

The judgment is affirmed.


text:
    SALVATORE FEOLA v. PEDRO MILA
    (AC 19894)
    Landau, Schaller and O’Connell, Js.
    Argued January 8
    officially released February 13, 2001
   Per Curiam.

The judgment is affirmed.


author: LANDAU, J.

text:
    MULLEN AND MAHON, INC. v. MOBILMED SUPPORT SERVICES, LLC ET AL.
    (AC 19734)
    Landau, Pellegrino and Callahan, Js.
    Argued September 18, 2000
    officially released February 27, 2001

      Ronald E. Nettleton, for the appellants-appellees (defendants).

      Bruce D. Tyler, for the appellee-appellant (plaintiff).
   Opinion

LANDAU, J.

The defendants appeal and the plaintiff cross appeals from the judgment rendered in favor of the plaintiff, Mullen & Mahon, Inc., after a trial to the court, in what is essentially an action to collect a debt, sounding in fraud, unjust enrichment and violation of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. On appeal, the defendants, Mobilmed Support Services, LLC (Mobilmed, LLC), John Fantry and William G. Miller, claim, to the best of our understanding, that the trial court improperly concluded that Fantry and Miller were insiders pursuant to General Statutes § 52-552Í (b) and that they were personally liable for a corporate debt owed to the plaintiff. On cross appeal, the plaintiff claims that the court improperly concluded that (1) Mobilmed, LLC, was not liable to the plaintiff, and (2) Fantry and Miller did not violate CUTPA. We affirm the judgment of the trial court.

The plaintiff commenced this action in June, 1997 (Mobilmed, LLC, action). Count one of the plaintiffs complaint alleged, inter aha, that the plaintiff, an insurance agent and broker, commenced an action against Mobilmed Support Services, Inc. (Mobilmed, Inc.), on or about December 27, 1996, to recover moneys owed to the plaintiff (Mobilmed, Inc., action). It farther alleged that the trial court granted the plaintiffs application for an attachment of the assets of Mobilmed, Inc., and the stock of its sole shareholder, Lawrence Cassol, in the amount of $50,000. On December 22, 1997, the court rendered judgment against Mobilmed, Inc., in the amount of $26,401.70 and against Cassol in the amount of $50,305.

The plaintiff also alleged that Fantry appointed Miller president of Mobilmed, Inc., in March, 1996; that Fantry lent Mobilmed, Inc., approximately $95,000 in the fall of 1996; that on or about December 20, 1996, Fantry organized Mobilmed, LLC; and that Fantry and Miller schemed to defraud the plaintiff by permitting Mobil-med, LLC, to occupy the premises of Mobilmed, Inc., to take over the customer list, contracts and business, and to acquire the assets of Mobilmed, Inc., without fair and reasonable compensation. The plaintiff, moreover, alleged that when the foregoing occurred, Fantry and Miller knew that the plaintiff had an attachment on the property of Mobilmed, Inc., in the amount of $50,000. As a result of their actions, the plaintiff claims that Fantry and Miller diminished the value of the stock of Mobilmed, Inc., and the plaintiffs ability to recover on the judgment in the Mobilmed, Inc., action against Cassol and Mobilmed, Inc.

Count two alleged that the defendants were unjustly enriched by the actions of Fantry and Miller, and count three alleged that the defendants violated CUTPA because their actions were immoral, oppressive and unscrupulous, and caused substantial injury to the plaintiff. The plaintiff sought money damages, punitive damages pursuant to General Statutes § 42-1 lOg (a) and reasonable attorney’s fees.

In response to the plaintiffs complaint, the defendants alleged two special defenses. The first special defense alleged that one, two or all of the defendants were creditors of Mobilmed, Inc., and therefore were in the same position as the plaintiff and other creditors. The second special defense alleged that one, two or all of the defendants purchased the assets of Mobilmed, Inc., for a sum in excess of $600,000, which was full and adequate consideration.

Following trial, the court made the following relevant findings of fact and conclusions of law, which are contained in its memorandum of decision. On March 1, 1996, Fantry obtained an option to purchase the stock of Mobilmed, Inc., from Cassol and immediately assumed control of the business. Although Fantry knew that Mobilmed, Inc., was in poor financial condition at that time, he was unaware of the severity of the problem. The assets of Mobilmed, Inc., consisted of several motor vehicles of little value, furniture, fixtures, equipment and goodwill. Mobilmed, Inc., had a number of nonexclusive service contracts with various customers that could be canceled upon sixty days notice. In addition, Mobilmed, Inc., was factoring its receivables and continued to do so dining the relevant period of time. Mobil-med, Inc., was insolvent from the time Fantry took control until its assets were transferred.

When Fantry assumed control, the tangible assets of Mobilmed, Inc., had a value of $150,000, including a $50,000 deposit that the factoring company was holding as security. Fantry had been told that the debts of Mobil-med, Inc., were approximately $200,000, but he later determined that they were in excess of $750,000. To keep Mobilmed, Inc., in business, Fantry immediately funded the payroll of $17,000. Mobilmed, Inc., could not obtain a line of credit, and, because its service contracts were nonexclusive, they could not be used as security.

Fantry learned that the prime customer of Mobilmed, Inc., had a strong relationship with Miller, who was the president of Mobilmed, Inc., at one time and who had left Mobilmed, Inc., prior to Fantry’s acquiring the option to purchase. At the time of his departure, Mobil-med, Inc., owed Miller $60,000. The prime customer was not going to honor its contract unless Miller reassociated with Mobilmed, Inc. Fantry brought Miller back to Mobilmed, Inc., and put him in charge of operations.

Late in 1996, Fantiy realized that Mobilmed, Inc., could not continue to operate without an influx of capital or a reorganization of some kind. In December, 1996, Fantiy filed documents with the secretary of the state to create Mobilmed, LLC. Mobilmed, Inc., ceased operation in January, 1997, and its assets apparently were transferred. Although Mobilmed, LLC, was created to acquire the assets of Mobilmed, Inc., and to take over its business, there is no clear evidence as to the identity of the entity to which the assets of Mobilmed, Inc., were transferred or how that transfer took place. Fantry and Miller controlled and directed both Mobilmed, Inc., and Mobilmed, LLC, during the relevant time.

Over the next six months, customer contracts in the name of Mobilmed, Inc., were rewritten in the name of Mobilmed, LLC. Payments for services performed by Mobilmed, LLC, were deposited in a Mobilmed, LLC, account irrespective of whether the service contracts were in the name of Mobilmed, Inc., or Mobilmed, LLC. Moneys received by Mobilmed, LLC, for services performed by Mobilmed, Inc., were forwarded to the factoring company for the benefit of the accounts of Mobilmed, Inc.

The tax return of Mobilmed, LLC, valued the assets of Mobilmed, Inc., at the time of the transfer at $634,000. The court found, however, that the value of the equipment of Mobilmed, Inc., was approximately $100,000, that the value of the service contracts was minimal, and that the value of the contracts and goodwill was indeterminable on the basis of the credible evidence presented. The court concluded that, at the time of the transfer, the value of the assets of Mobilmed, Inc., exceeded $120,000, but was less than $634,000, and that $515,914 was given in consideration for those assets.

The court also found that for a number of years prior to 1996, the plaintiff sold policies of insurance to Mobil-med, Inc., and to other entities owned by Cassol. When Mobilmed, Inc., defaulted on the payment of premiums due, the plaintiff commenced the Mobilmed, Inc., action in April, 1996, seeking $58,108. The plaintiff sought to attach the securities of Mobilmed, Inc., and other corporations, including a payment due the various corporations from The Hartford Insurance Company (Hartford). As a result of the request for a prejudgment attachment, Mobilmed, Inc., agreed to assign the payment due from Hartford to the plaintiff. On December 22, 1997, a modified judgment was rendered against Mobilmed, Inc., in the amount of $26,401.70 and against Cassol in the amount of $50,305.

In the present action, the plaintiff essentially is claiming that the transfer of assets from Mobilmed, Inc., to Mobilmed, LLC, prevented it from collecting the judgments rendered against Mobilmed, Inc., and Cassol in the Mobilmed, Inc., action. In considering the plaintiffs claim of fraud, the court noted that the Uniform Fraudulent Transfer Act (act), General Statutes § 52-552a et seq., sets forth four situations in which the transfer of assets or the incurring of an obligation is to be construed as a fraudulent transfer. After considering the evidence, the court concluded that the defendants did not violate General Statutes §§ 52-552e (a) (1), 52-552e (a) (2) or 52-552f (a). It concluded, however, that the defendants violated § 52-552f (b) by transferring the assets of Mobilmed, Inc., because Fantry and Miller were insiders and the debt was antecedent to the transfer. The court found that Fantry and Miller were liable personally to the plaintiff on the first count of the complaint and that the plaintiff had been damaged in the amount of $26,401.70.

The plaintiff sought to collect $50,305, which it claimed was the value of Cassol’s shares in Mobilmed, Inc. It also claimed that the transfer of the assets of Mobilmed, Inc., diminished the value of Cassol’s shares and, therefore, caused $23,904.30 of the judgment to be uncollectible. The court determined, however, that Mobilmed, Inc., was insolvent, as defined by General Statutes § 52-552c (a), immediately prior to the transfer. The plaintiff also sought attorney’s fees, which the court declined to award because no attorney’s fees were proven and because the act does not provide for attorney’s fees.

As to the second count, the court concluded that none of the defendants was unjustly enriched. The plaintiff failed to prove the value of the assets transferred or the degree, if any, to which the defendants had been enriched. With regard to the third count, the court concluded, after applying the “cigarette rule”; see Conaway v. Prestia, 191 Conn. 484, 492-93,464 A.2d847 (1983), quoting Federal Trade Commission v. Sperry & Hutchinson Co., 405 U.S. 233, 92 S. Ct. 898, 31 L. Ed. 2d 170 (1972); that the defendants had not violated CUTPA. The court rendered judgment in favor of the plaintiff in the amount of $26,401.70 on the first count of the plaintiffs complaint only, and both sides appealed.

Very simply, the defendants claim that the court improperly concluded that Fantry and Miller were insiders and, thus, personally liable on the debt. The plaintiff claims in its cross appeal that the court improperly concluded that Mobilmed, LLC, was not liable and that there was no violation of CUTPA. Because the record is inadequate for our review and because the briefs and arguments of both sides are devoid of legal analysis in a manner consistent with our rules of appellate practice, we do not reach the merits of the appeals.

Our rules of appellate practice are contained in chapters 60 through 86 of the Practice Book. “Except where otherwise provided, the . . . form of cross appeals . . . shall be the same as though the cross appeal were an original appeal.” Practice Book § 61-8. “It is the responsibility of the appellant to provide an adequate record for review. The appellant shall determine whether the entire trial court record is complete, correct and otherwise perfected for presentation on appeal. For purposes of this section, the term ‘record’ is not limited to its meaning pursuant to Section 63-4 (a) (2), but includes all trial court decisions, documents and exhibits necessary and appropriate for appellate review of any claimed impropriety.” Practice Book § 61-10.

The record before this court contains a copy of the revised complaint, the defendants’ answer and special defenses, and the trial court’s memorandum of decision. There is no appendix in the brief of either party. See Practice Book §§ 67-4 (d) (4) and 67-8.

Practice Book § 67-4 dictates the content and organization of an appellant’s brief. The brief shall contain “[a] statement of the nature of the proceedings and of the facts of the case bearing on the issues raised. The statement of facts shall be in narrative form, shall be supported by appropriate references to the page or pages of the transcript or to the document upon which the party relies . . . .” Practice Book § 67-4 (c). The statement of facts in the defendants’ brief consists of two sentences and contains no references to the documents or the transcript on which they rely. The plaintiffs statement of the facts is about one page in length and is more in the nature of a statement of allegations than a recitation of the facts. The plaintiffs brief does, however, refer to its complaint and the memorandum of decision.

“The argument [shall be] divided under appropriate headings into as many parts as there are points to be presented, with appropriate references to the statement of facts or to the page or pages of the transcript or to the relevant document. The argument on each point shall include a separate brief statement of the standard of review the appellant believes should be applied.” Practice Book § 67-4 (d). Although the defendants state four issues for our consideration, their argument is organized under one heading without a statement of the standard of review applicable to the claims raised. The argument is approximately two and one-half pages in length and sets forth the claim that the trial court improperly pierced the corporate veil, a claim that was neither before the trial court nor included in the defendants’ statement of the issues. In its reply brief, the plaintiff consolidated its arguments because the defendants “lumped” their arguments together. The plaintiffs analysis is about one page in length and contains no standards of review. The plaintiffs two page argument of its cross appeal is divided by the issues, but contains no standard of review or legal analysis.

“[F]or this court judiciously and efficiently to consider claims of error raised on appeal; Karanian v. Maulucci, 185 Conn. 320, 321, 440 A.2d 959 (1981); the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . Krondes v. O'Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).” (Internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, 48 Conn. App. 89, 100, 709 A.2d 14 (1998). The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. Id.; see also Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert, denied, 239 Conn. 939, 684 A.2d 711 (1996). “[Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court. . . . Fitzgerald v. Fitzgerald, 16 Conn. App. 548, 554, 547 A.2d 1387, cert, denied, 210 Conn. 802, 553 A.2d 615 (1988). Fromer v. Freedom of Information Commission, 36 Conn. App. 155, 156, 649 A.2d 540 (1994).” (Internal quotation marks omitted.) New London Federal Savings Bank v. Tucciarone, supra, 101. Where the parties cite no law and provide no analysis of their claims, we do not review such claims. Id.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants’ brief contains the following statement of issues: (1) “The trial court found the defendants Fantry and Miller insiders and therefore personally liable for the insurance agency’s antecedent debt of $26,401.70. While the Court had some doubt as to the exact date of the transfer, there was no doubt that [Mobilmed, Inc.] (the ‘debtor’) transferred its assets to the [Mobilmed, LLC] and not to Fantry and Miller”; (2) “The transfer [of Mobilmed, Inc.’s assets] was to [Mobilmed, LLC] and not to the defendants as individuals, and not to an insider as required by the statute. ‘Insider’ in the statute is defined in terms of the debtor’s insider and does not address a transferee or what could be called a transferee’s ‘insider’ ”; (3) “The assumption of the antecedent debt of Fantry and Miller is not sufficient to find liability on the part of Fantry and Miller as there is no basis in statute for the finding of personal liability”; and (4) “The trial court incorrectly applied and interpreted General Statutes [§ 52-552f] (b).”

       There were numerous additional defendants in the Mobilmed, Inc., action.

       In its memorandum of decision, the court observed that Practice Book § 10-3 (a) “requires that the statutory section be set forth in the complaint if the claim is grounded on a statute.” Although the plaintiff failed to plead a statute in its amended complaint, in its trial brief, the plaintiff cited General Statutes §§ 52-552e, 52-552Í and 52-552h. The court, therefore, considered count one to be grounded in the Uniform Fraudulent Transfer Act. See Goodrich v. Diodato, 48 Conn. App. 436, 443, 710 A.2d 818 (1998). The defendants did not object.

       The corrected judgment in the Mobilmed, Inc., action states, inter alia, that “[tjaldng the total net premiums due of $153,129 and crediting the total payments of $126,727.30 leaves a net judgment found of $26,401.70” as to Mobilmed, Inc.

       General Statutes § 52-552Í (b) provides: “A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time and the insider had reasonable cause to believe that the debtor was insolvent.”

       The calibre of the appeals here is by no means unique, as we see a similar quality of briefs far too often. We, therefore, take this opportunity to review briefly some of the basic rules of appellate advocacy.
      First, an appellate advocate should know our rules of practice and be guided by them. The issues on appeal should be stated clearly and succinctly so that the court understands the appellant’s claim of judicial impropriety. Writing a compelling legal argument is a painstaking, time-consuming task. Good legal analysis is premised on knowing the controlling rules of law. An effective appellate advocate must apply the rales of law to the facts at hand by applying or distinguishing existing legal precedent. The goal of appellate counsel is to create a document that leads the court through the logic of the advocate’s position in a persuasive manner. To write a good brief and to comply with the rules of practice, counsel must state the rules of law, provide citations to legal authority that support the claims made, and know the difference between binding and persuasive precedent, as well as primary and secondary authority. Finally, an appellate advocate must abide by the rules of ethical conduct, which are incorporated in our rules of practice.


author: SPEAR, J.

text:
    GIZELLA BIRO v. LEON C. HIRSCH ET AL.
    (AC 19639)
    Lavery, C. J., and Spear and Hennessy, Js.

      Argued September 26, 2000
    officially released February 27, 2001

      Suzanne L. McAlpine, with whom, on the brief, was Hugh F. Keefe, for the appellants (defendants-third party plaintiffs).

      Bryan L. LeClerc, with whom, on the brief, was Thomas G. Cotter, for the appellee (third party defendant).
   Opinion

SPEAR, J.

The defendants in this action, Leon C. Hirsch and Turi Josefson, husband and wife, appeal from the judgment of the trial court granting the motion of the third party defendant, Cornelia Ford, to strike the defendants’ revised third party complaint against her. The third party complaint alleged conspiracy to commit extortion (count one), intentional infliction of emotional distress (count two) and tortious interference with a business expectancy (count three). The defendants claim that the court improperly (1) granted the motion to strike and (2) ruled on the motion, as the motion had been argued and was pending before another trial court judge. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. The defendants employed the plaintiff, Gizella Biro, as a housekeeper and cook for more than five years. In her amended complaint, the plaintiff claims that Hirsch abused their employment relationship by forcing her to have sexual relations with him over a period of several years and that Josefson attempted to engage her in similar conduct. At the time that the plaintiff filed the complaint, Hirsch served as president and chief executive officer of the defendant United States Surgical Corporation.

The defendants subsequently filed a twelve count counterclaim, alleging, inter alia, violations of the federal Racketeer Influenced and Corrupt Organizations Act, 18U.S.C. § 1961 etseq. (RICO), conspiracy to commit extortion, defamation, false light invasion of privacy, intentional infliction of emotional distress, vexatious litigation, larceny and tortious interference with a business expectancy. The defendants cited in Ford as a party defendant with respect to the claims of conspiracy to commit extortion, intentional infliction of emotional distress and tortious interference with a business expectancy.

At about the same time, the defendants filed a third party complaint against Ford, alleging conspiracy to commit extortion, intentional infliction of emotional distress and tortious interference with a business expectancy. The claims against Ford in the counterclaim and the third party complaint were similar, but not identical. Ford filed a motion to strike all three counts of the third party complaint. Four months later, the plaintiff filed a motion to strike nine counts of the counterclaim, including count two, alleging conspiracy to commit extortion, and count five, alleging intentional infliction of emotional distress, to which Ford had been made a party defendant. The court, Skolnick, J., denied the plaintiffs motion on the ground that the allegations were legally sufficient to support the defendants’ claims. More than one year later, the court, Tierney, J., granted Ford’s motion to strike the third party complaint on the ground that the allegations were legally insufficient to support the defendants’ claims. The defendants did not replead, and the court rendered judgment for Ford. This appeal followed.

I

The defendants first claim that the court improperly granted Ford’s motion to strike because they sufficiently pleaded the elements of conspiracy to commit extortion, intentional infliction of emotional distress and tortious interference with a business expectancy in the third party complaint against Ford. We disagree.

The following additional facts are necessary to our resolution of that issue. The claims against Ford in the third party complaint were based in part on allegations that (1) Ford had entered into a conspiracy to commit extortion with the plaintiff and Eva Kale, another housekeeper employed by the defendants, (2) the puipose and object of the conspiracy were to compel the defendants, through threats of uttering and publishing false, malicious and scandalous statements about them, to pay to the plaintiff and to Kale large sums of money in return for refraining from such malicious and unlawful conduct, (3) in furtherance of the conspiracy, Ford had advised the plaintiff to commence legal action against the defendants and had assisted the plaintiff in retaining an attorney, and (4) the defendants suffered damages and injuries as a result of the conspiracy. The third party complaint also contained allegations that the plaintiff and Kale had “uttered and published, or caused to be uttered and published,” false and defamatory statements concerning the defendants.

“The standard of review of a trial court’s granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review of the court’s ruling on [a motion to strike] is plenary. ... In an appeal from the granting of a motion to strike, we must read the allegations of the complaint generously to sustain its viability, if possible .... We must, therefore, take the facts to be those alleged in the complaint that has been stricken and . . . construe the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) Eskin v. Castiglia, 253 Conn. 516, 522-23, 753 A.2d 927 (2000).

A

The elements of a civil action for conspiracy are: “(1) a combination between two or more persons, (2) to do a criminal or an unlawful act or a lawful act by criminal or unlawful means, (3) an act done by one or more of the conspirators pursuant to the scheme and in furtherance of the object, (4) which act results in damage to the plaintiff.” (Internal quotation marks omitted.) Marshak v. Marshak, 226 Conn. 652, 665, 628 A.2d 964 (1993), overruled on other grounds, State v. Vakilzaden, 251 Conn. 656, 666, 742 A.2d 767 (1999).

Although we affirm the corut’s decision to strike the conspiracy claim in count one, we do not fully agree with its reasoning. In its memorandum of decision, the corut concluded that the motion to strike should be granted because “the defendants have alleged Ford’s sole participation was the recommendation of an attorney for Biro. That act, in and of itself, is not ‘a criminal or an unlawful act or a lawful act by criminal or unlawful means.’ Ford is only included in the tail end of a general conspiracy allegation. The defendants have not alleged any act by Ford as part of the conspiracy.”

We take the analysis one step further because, had the third party complaint alleged that either of the other two conspirators committed an act specifically in “furtherance of’ the extortion attempt pursuant to General Statutes § 53a-119, the claim would be legally sufficient on the ground that “all conspirators are civilly liable for the damage resulting from any overt act committed by one of them pursuant to the combination.” Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 36 Conn. Sup. 144, 152, 414 A.2d 1177 (1980); see also Marshak v. Marshak, supra, 226 Conn. 665. We therefore conclude that the defendants’ claim must fail because they do not allege a single act by any of the conspirators “in furtherance of’ the conspiracy.

Section 53a-119 (5) provides in relevant part: “A person obtains property by extortion when he compels or induces another person to deliver such property to himself or a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will . . . (E) expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule . . . .”

Even when reading the third party complaint generously to sustain its validity, none of the allegations in paragraphs nine, ten, eleven, twenty-eight, thirty and thirty-two of count one, each of which purportedly describes acts by one of the conspirators “in furtherance of’ the conspiracy, properly supports the claim of extortion. Indeed, we find what is not alleged to be far more significant than what is alleged. For example, paragraph nine alleges that Ford advised the plaintiff to commence legal action against the defendants and assisted the plaintiff in retaining an attorney, but does not allege that the plaintiff retained the attorney for the purpose of threatening to publicize scandalous statements about the defendants or to commence litigation against them if they failed to comply with the plaintiffs demand for money. Similarly, paragraphs ten, eleven, twenty-eight, thirty and thirty-two allege that the plaintiff or Kale “uttered and published or caused to be uttered and published,” false and defamatory statements concerning the defendants, and that the plaintiffs attorney held a widely publicized press conference. The essence of extortion, however, is not publication, but rather the threat of publication if the extortionary demands are not met. Conversely, allegations regarding publication typically support other causes of action, as the defendants themselves recognized in their counterclaim, in which they make virtually identical allegations as to publication in count three, defamation, and count four, false light invasion of privacy.

The absence of specific allegations that the conspirators threatened to bring a lawsuit against the defendants and to publicize their claims if they were not paid the money demanded becomes all the more striking in light of the fact that the defendants properly allege extortionary acts by the plaintiff and Kale in count one, paragraphs eighteen and nineteen, of their counterclaim. Hence, the defendants were aware of the requirements for alleging the factual predicate for extortion. Accordingly, we conclude that when the third party complaint is construed in a manner most favorable to sustaining its legal sufficiency, the defendants have failed to allege a legally sufficient cause of action for conspiracy to commit extortion in the third party complaint against Ford.

B

Having concluded that the conspiracy claim must fail, we now consider whether the claims against Ford for intentional infliction of emotional distress and tortious interference with a business expectancy must also fail, either standing alone or insofar as they are based on the conspiracy allegations.

The defendants’ claims against Ford for intentional infliction of emotional distress and tortious interference with a business expectancy incorporate all but the last two paragraphs of the conspiracy claim. To the extent that the second and third claims are derived from the claim of conspiracy to commit extortion, they must necessarily fail because the conspiracy claim is legally insufficient. Accordingly, we must next consider whether the claims for intentional infliction of emotional distress and tortious interference with a business expectancy may survive without extortion as a basis.

The elements of a claim for intentional infliction of emotional distress are well settled. “For [a party] to prevail on a claim of intentional infliction of emotional distress, four elements must be established. It must be shown: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the . . . conduct was the cause of the [party’s] distress; and (4) that the emotional distress sustained by the [party] was severe. . . . Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986). . . . Appleton v. Board of Education, 53 Conn. App. 252, 265, 730 A.2d 88 [(1999), rev’d in part on other grounds, 254 Conn. 205,757A.2d 1059 (2000)]. Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. . . . Ancona v. Manafort Bros., Inc., 56 Conn. App. 701, 712, 746 A.2d 184, cert, denied, 252 Conn. 953, 749 A.2d 1202 (2000). All four elements must be established to prevail on a claim for intentional infliction of emotional distress. Reed v. Signode Corp., 652 F. Sup. 129, 137 (D. Conn. 1986); see also Petyan v. Ellis, supra, 254.” (Internal quotation marks omitted.) Muniz v. Kravis, 59 Conn. App. 704, 708-709, 757 A.2d 1207 (2000).

Here, the defendants do not allege facts establishing that Ford’s conduct was extreme and outrageous. Count two merely alleges that Ford advised the plaintiff to commence legal action against the defendants and assisted the plaintiff in retaining an attorney. Such conduct cannot be said to transgress the bounds of socially tolerable behavior. See Ancona v. Manafort Bros., Inc., supra, 56 Conn. App. 712. We conclude that, absent the extortion claim, count two is legally insufficient to allege a cause of action against Ford for intentional infliction of emotional distress.

C

We next consider the defendants’ claim of tortious interference with a business expectancy. “An action for tortious interference with a business expectancy is well established in Connecticut. The plaintiff need not prove that the defendant caused the breach of an actual contract; proof of interference with even an unenforceable promise is enough. ... A cause of action for tortious interference with a business expectancy requires proof that the defendant was guilty of fraud, misrepresentation, intimidation or molestation ... or that the defendant acted maliciously. . . . Jones v. O’Connell, 189 Conn. 648, 660, 458 A.2d 355 (1983). It is also true, however, that not every act that disturbs a contract or business expectancy is actionable. Blake v. Levy, 191 Conn. 257, 260, 464 A.2d 52 (1983). A defendant is guilty of tortious interference if he has engaged in improper conduct. Id., 261; see 4 Restatement (Second), Torts §§ 766, 766B, 767 (1979). [T]he plaintiff [is required] to plead and prove at least some improper motive or improper means. Kakadelis v. DeFabritis, 191 Conn. 276, 279, 464 A.2d 57 (1983); Blake v. Levy, supra, 262. . . .

“Stated simply, to substantiate a claim of tortious interference with a business expectancy, there must be evidence that the interference resulted from the defendant’s commission of a tort.” (Citations omitted; internal quotation marks omitted.) Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 702-703, 569 A.2d 1157, cert, denied, 214 Conn. 809, 573 A.2d 320 (1990).

The defendants again have failed to allege a legally sufficient claim against Ford. The defendants make no allegations to support their claim that Ford’s advice and assistance in retaining legal counsel for the plaintiff constituted a tort, was improper or interfered with an enforceable or unenforceable promise. See id. In fact, the defendants provide no authority whatsoever, and we are aware of none, to support the conclusion that recommending assistance of counsel, in and of itself, is anything but legal.

Accordingly, after construing the allegations generously to sustain their validity, we conclude that count three is legally insufficient to support a cause of action against Ford for tortious interference with a business expectancy.

II

The defendants finally claim that the Superior Court in the judicial district of Stamford-Norwalk improperly held a hearing and ruled on Ford’s motion to strike because the motion had been argued and was pending before the Superior Court in the judicial district of Fair-field. We do not agree.

The following additional facts are relevant to a resolution of these claims. On May 7, 1998, the chief court administrator ordered that the case be transferred to the complex litigation docket in Waterbury pursuant to General Statutes (Rev. to 1997) § 51-347a. The order permitted any party objecting to such transfer to file an objection within twenty days. The defendants filed an untimely objection on June 11, 1998. On June 30, 1998, the court ordered that the case be transferred from Waterbury to the complex litigation docket in Stamford. According to the docket summary, the defendants filed a second untimely objection to the transfer on September 18,1998. The Superior Court in Stamford heard the motion to strike on February 19, 1999, and issued its memorandum of decision on April 1, 1999.

General Statutes (Rev. to 1997) § 51-347a (a) provides: “The judge holding the superior court in any judicial district may, if in his opinion the cause of justice requires it, upon motion, order any civil action pending in the court, which has been claimed to the jury, to be transferred to the court in another judicial district. The Chief Court Administrator may, on his own motion, when required for the efficient operation of the courts and to insure the prompt and proper administration of justice, order like transfers.”

Practice Book §§ 23-13 and 23-14 also provide that the chief court administrator or the chief administrative judge of the civil division may grant a case complex litigation status, and that any judge to whom complex litigation cases have been assigned has broad powers to transfer the proceedings to another judicial district and enter any appropriate order that facilitates the management of such cases. Consequently, the court’s decision to transfer the present case to the complex litigation docket in Stamford, and the Stamford Superior Court’s hearing and subsequent ruling on the motion, fully complied with the relevant statutory provisions and rules of practice, and we conclude that the defendants’ claim is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint filed by the plaintiff, Gizella Biro, also named as a defendant United States Surgical Corporation, which is not a party to this appeal. All subsequent references to “the defendants” are to Hirsch and Josefson, unless otherwise noted, despite their status as plaintiffs with respect to their revised third party complaint against the third party defendant, Cornelia Ford.

       Ford directed her motion to strike, dated May 3, 1996, and her reply brief on the motion dated July 1,1996, to the defendants’ allegations against her in their counterclaim against the plaintiff, Gizella Biro. In both of her pleadings, Ford also referred to the allegations in counts one, two and three, the numbered counts in the revised third party complaint. Those counts allege conspiracy to commit extortion, intentional infliction of emotional distress and tortious interference with a business expectancy, respectively. The corresponding counts in the counterclaim are numbered two, five and twelve, respectively. The defendants’ brief opposing Ford’s motion to strike, the court’s memorandum of decision on the motion to strike, the judgment on the motion and the defendants’ appeal papers all referred to Ford’s motion as a motion to strike the defendants’ three count, revised third party complaint. We, accordingly, treat Ford’s motion as a motion to strike the allegations against her in the revised third party complaint rather than in the counterclaim. See CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 656 n.5, 653 A.2d 207 (1995) (we may treat case as parties treated and presented it, despite procedural irregularities).

       The plaintiffs six count amended complaint, dated August 4,1994, alleged sexual assault against Hirsch; battery against Hirsch; battery against Josef-son; eavesdropping against Hirsch and the defendant United States Surgical Corporation; unlawful withholding of wages against Hirsch, Josefson and United States Surgical Corporation; and intentional infliction of emotional distress against Hirsch, Josefson and United States Surgical Corporation. The corut rendered a summary judgment in favor of Hirsch and United States Surgical Corporation on the eavesdropping count.

       The revised third party complaint, filed in April, 1996, is the operative complaint for purposes of this appeal.

       The claims against Ford for conspiracy to commit extortion and intentional infliction of emotional distress were essentially the same in the counterclaim and in the third party complaint. The claim against Ford in the counterclaim for tortious interference with a business expectancy, however, included allegations of extortion that were not made in the third party complaint. Despite the fact that claims similar to those in the third party complaint remain pending against Ford in the counterclaim, the judgment of the trial court with respect to the third party complaint is a final judgment for purposes of appeal under Practice Book § 61-2 because the entire third party complaint was stricken.

       See footnote 2.

       We may affirm a proper result of the trial court for a different reason. See CMG Realty of Connecticut, Inc. v. Colonnade One Ltd. Partnership, 36 Conn. App. 653, 660, 653 A.2d 207 (1995).

       The defendants properly alleged the other three elements of the conspiracy claim. Paragraph seven of count one alleges that Ford entered into a combination or conspiracy with the plaintiff and Kale. Paragraph eight alleges that the purpose and objective of the conspiracy was to compel the defendants, through threats of uttering and publishing false, malicious and scandalous statements about them, to pay to Kale and to the plaintiff large sums of money in return for refraining from such malicious and unlawful conduct. Paragraphs thirty-four and thirty-five allege that the defendants suffered damages and injuries as a result of the alleged conspiracy.

       Count one, paragraph eighteen, of the counterclaim, alleging RICO violations, states that “[i]n order to perpetrate the conspiracy set forth above, the enterprise used or caused the use of the United States mail for correspondence directed to Hirsch, threatening the commencement of litigation against Hirsch for sexual assault, intimidation, harassment, physical and emotional abuse, intentional infliction of emotional distress and rape.” Count one, paragraph nineteen, of the counterclaim states that “[i]n order to perpetrate the conspiracy set forth above, the enterprise further transmitted or caused to be transmitted interstate communications by wire or telephone, which communications included, without limitation, telephone calls between the agents and attorneys retained by the enterprise and the attorneys retained by the plaintiffs to defend themselves against the enterprise’s threatened litigation. ” Those paragraphs are not incorporated in count two of the counterclaim alleging conspiracy to commit extortion or count five of the counterclaim alleging emotional distress, but are incorporated in count twelve of the counterclaim alleging tortious interference with a business expectancy.

       The last two paragraphs of the conspiracy count allege harm and damages.

       We do not address what effect, if any, the judgment has on allegations against Ford in the defendants' counterclaim.


author: SCHALLER, J.

text:
    AUGUSTUS PINTO v. COMMISSIONER OF CORRECTION
    (AC 19327)
    Schaller, Spear and O’Connell, Js.
    Argued September 19, 2000
    officially released February 27, 2001

      Adele V. Patterson, assistant public defender, for the appellant (petitioner).

      Richard T. Biggar, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (respondent).
   Opinion

SCHALLER, J.

The petitioner, Augustus Pinto, appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus in which he sought, pursuant to Connecticut’s Interstate Agreement on Detainers (IAD), to quash a detainer lodged against him by the state of New Jersey. On appeal, the petitioner claims that the court improperly interpreted the IAD to preclude relief even though he had substantially complied with its terms. We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our resolution of this appeal. The petitioner is an inmate at the Enfield correctional institution. He has been incarcerated since 1963, when he was convicted and sentenced to life in prison for murder in the second degree. The petitioner was released on furlough on December 26, 1988, from which he did not return until his apprehension on January 10, 1989.

The petitioner first received notice of a New Jersey detainer on or about August 29,1990, when he accepted delivery of the warrant. The New Jersey indictment charged the petitioner with conspiracy to commit robbery and murder in Atlantic County, New Jersey, on or about December 30, 1988 through January 3, 1989. He refused to sign the accompanying IAD form 1, although he did accept delivery of the warrant. The petitioner also did not sign a form 2 that was included with the warrant and the form 1.

On August 17, 1992, the petitioner sent a written request to the records office of the department of correction (department) “concerning [his] case in New Jersey,” asking for “the court papers for a speedy trial.” His counselor provided him with forms 1 and 2, but the petitioner neither completed nor returned the forms to the records office. In a second written request, dated December 28,1992, the petitioner sought “court papers for New Jersey” because he wanted to “have them for Jan. 2, 1993.” The petitioner again refused to sign the form 1 that was sent with the papers on December 30, 1992.

Sometime before January 20, 1993, Michelle Humphrey, technical adviser to the records office, spoke with the New Jersey prosecutor regarding the petitioner’s intent to request a speedy disposition of the New Jersey charges. The prosecutor responded, in a letter dated January 20, 1993, that “[i]t is my understanding that you believe Augustus Pinto will soon request, pursuant to the Interstate Agreement on Detainers, to have the criminal charges in New Jersey heard within 180 days. I would ask that once defendant Pinto invokes this right, you notify me at once.” Humphrey informed the New Jersey prosecutor on or about January 29, 1993, that the petitioner was undergoing medical testing and would sign the speedy trial papers when he felt better.

On or about February 1, 1993, the petitioner mailed directly to New Jersey an undated request for final disposition of the charges there. In a letter to the petitioner, dated February 1,1993, the New Jersey prosecutor responded that his “[r]equest for Final Disposition [was] legally defective and the State of New Jersey [would] not act upon it.” The prosecutor directed the petitioner to discuss his speedy disposition request with his counselor. In July, 1993, the prosecutor contacted Humphrey and inquired whether the petitioner intended to file speedy disposition papers. Humphrey replied that the petitioner still was not feeling well and would sign the papers when he was feeling better.

One year later, in August, 1994, the petitioner filed a motion for appointment of cocounsel status and a request for discovery in Atlantic County Superior Court. In response to those filings, the New Jersey prosecutor sent a letter to the petitioner, explaining that he was still considered an “inactive fugitive” and, until he completed the appropriate IAD paperwork, his status would not change.

On April 22,1995, the petitioner sent a written request to the records office of the department, asking “that you submit the papers that are needed for me to apply for a speedy trial, under the Interstate [Agreement] on Detainers.” In response to the petitioner’s request, the department presented the petitioner with a form 1 dated April 24, 1995, and a form 2, dated April 24, 1995, and signed by warden John Tarascio. The petitioner refused to sign the forms. In addition to forms 1 and 2, the department completed a form 3, signed by Tarascio, and an unsigned form 4. The IAD office did not receive any of those forms. The petitioner did complete and sign a Connecticut Speedy Trial Notification and Request for Disposition form, dated April 24, 1995. The form lists the New Jersey charges and is initialed by Tarascio. The form was not, however, processed by the records office.

In May, 1995, the petitioner sent a packet of information directly to the New Jersey prosecutor. The prosecutor received the packet, dated May 10, 1995, on May 8, 1995. The packet included a letter to the prosecutor, a form 1 dated May 10, 1995, with warden Peter Matos’ name appearing typed on the form, a form 2, dated May 10, 1995, signed by the petitioner, an unofficial form 1 signed by the petitioner and dated 1994, an unofficial form 3 signed by the petitioner and dated May 10,1995, and an unofficial form 4, signed by the petitioner and dated May 5, 1995. The “official” forms 1 and 2 that were sent to the New Jersey prosecutor contained altered dates; they were forms originally given to the petitioner in 1992 when Matos was still the warden.

In early January, 1996, the records office received two additional sets of forms 1 and 2. Because the forms were not filed according to proper processing procedures, they were placed into the miscellaneous section of the petitioner’s department file. The first form 1 is dated February 2, 1996, and January 5, 1996. Matos’ name appears typed on the document, although he was not the warden in 1996, and it is signed by the petitioner. Form 2 is dated January 5, 1996, and it is also signed by the petitioner. Both forms, though signed and dated in January, 1996, were photocopies of the 1992 forms previously presented to the petitioner for his signature but never returned to the records office for processing. The second form 1 is dated January 7,1996, and contains the typed name of Matos, who was not the warden in 1996, and is not signed by the petitioner. The second form 2 is dated January 7, 1996, and is signed by the petitioner. The records office determined that, because Matos was no longer the warden in 1996, the documents were invalid.

A set of forms, all of which were dated January 7, 1996, and signed by the petitioner, was also placed in the miscellaneous section of the petitioner’s master file. The forms were of inmate design rather than standard LAD forms. They included a form 1, a form 3, a form 4, and a letter titled “Request for Final Disposition.” The records office considered those forms improper and declined to process them.

On January 22, 1996, and January 29, 1996, the petitioner submitted written requests asking the department records office to “make out all the court papers I need, so I can take care of this [New Jersey] matter as soon as possible.” In response to that request, department personnel prepared and provided forms 1 through 4 to the petitioner. Form 1 is dated January 30, 1996, and signed by warden Michelle Deveau, but is not signed by the petitioner. Form 2 is dated January 30,1996, and is signed by the petitioner. Form 3 is completed and signed by Deveau, although it is not dated. Form 4 is completed but not signed by the warden. The forms were submitted to the records office for processing and were placed in section four of the inmate’s master file. The records office did not forward the forms to New Jersey because the petitioner failed to sign form 1. The records office did not forward the forms to the department’s IAD office.

On July 24, 1996, the New Jersey attorney general’s office received directly from the petitioner a motion to dismiss the New Jersey charges for failure to prosecute, and a Connecticut Speedy Trial Notification and Request for Disposition form, completed and dated 1995.

On October 21, 1996, the Interstate Compact Office received form 5, New Jersey’s request for temporary custody of the petitioner. On April 24,1997, the commissioner of correction, John J. Armstrong, applied for a writ of habeas corpus for the petitioner in an effort to comply with New Jersey’s request for temporary custody filed October 9, 1996. The petitioner was brought before the court on May 6,1997, for a pretransfer hearing at which time he was notified of his rights in regard to the detainer. The petitioner chose not to waive his rights and objected to the involuntary transfer to New Jersey for disposition of the conspiracy charges. The court stayed the transfer and granted the petitioner until August 8,1997, to file a petition for a writ of habeas corpus. The petitioner filed his petition on August 4, 1997. The habeas court held hearings on January 30, 1998, and March 20, 1998. The court, dismissed the petition, holding that the petitioner had failed to substantiate his petition under theories of actual or substantial compliance with the IAD.

The petitioner claims that the habeas court improperly interpreted the IAD to deny the petitioner relief even though he had substantially complied with the statute. We disagree.

“Our standard of review of the petitioner’s claim is plenary. We must decide whether the court’s conclusion is legally and logically correct and find[s] support in the facts that appear in the record.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, 60 Conn. App. 1, 8, 758 A.2d 442, cert, denied, 255 Conn. 902, 762 A.2d 908 (2000). “[T]he IAD is an interstate compact that the federal Congress has sanctioned, [therefore,] we must interpret its provisions in accordance with federal law.” State v. Herring, 210 Conn. 78, 85, 554 A.2d 686, cert, denied, 492 U.S. 912, 109 S. Ct. 3230, 106 L. Ed. 2d 579 (1989). “Because the IAD . . . has been deemed to constitute federal law[,] . . . interpretations of its provisions by the federal courts have special significance.” (Citations omitted.) Craig v. Bronson, 202 Conn. 93, 103-104, 520 A.2d 155 (1987). “In searching for the applicable federal law, we may, however, look to relevant decisions in both federal and state courts.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 9 n.9.

“The IAD is designed to encourage the expeditious and orderly disposition of criminal charges pending in one state against a prisoner incarcerated in another state.” (Internal quotation marks omitted.) Id., 8. One mechanism for facilitating this orderly disposition is the detainer, or a “notification filed with the institution in which the prisoner is serving a sentence, advising that he is wanted to face pending criminal charges in another jurisdiction.” (Internal quotation marks omitted.) State v. Smith, 57 Conn. App. 478, 482, 749 A.2d 67 (2000). Article III of the IAD gives a prisoner incarcerated in one state the right to demand the speedy disposition of any untried indictment that supports a detainer lodged by another state. Carchman v. Nash, 473 U.S. 716, 718-19, 105 S. Ct. 3401, 87 L. Ed. 2d 516 (1985). “Failure to comply with Article III (a) mandates dismissal with prejudice of the underlying charges.” State v. Herring, supra, 210 Conn. 86. The question before us is whether the petitioner sufficiently complied with article III IAD procedures to effect his right to a speedy disposition.

“It has been held that a prisoner must first meet the burden of compliance with IAD disposition procedures before he is entitled to invoke the agreement’s benefits . . . [although we recognize that the IAD is remedial legislation and that a prisoner must be given some latitude in complying with its provisions . . . .” (Citations omitted.) Remick v. Lopes, 203 Conn. 494, 505, 525 A.2d 502 (1987). It is settled that an oral request for disposition is insufficient to invoke the benefits of the IAD. Id. We further conclude that repeated disregard for IAD procedures is similarly inadequate. “[S]ince the petitioner never properly invoked the IAD, he is precluded from complaining that he has been denied his right to a speedy trial, and having the detainers lodged against him declared null and void.” Id., 505-506.

Federal courts have “recognized that [s]trict compliance with Article III may not be required when the prisoner has done everything possible, and it is the custodial state that is responsible for the default. . . . [However] an inmate seeking the benefit of this exception nonetheless must show that s/he substantially complied to the extent possible.” (Internal quotation marks omitted.) United States v. Dent, 149 F.3d 180, 186-87 (3d Cir. 1998), cert, denied, 525 U.S. 1085, 119 S. Ct. 833,142 L. Ed. 2d 689 (1999); see also Yiaadey v. Commonwealth, 29 Va. App. 534, 544-46, 513 S.E.2d 446 (1999) (surveying cases requiring strict compliance with IAD procedures). Athough the petitioner argues that the procedures are mere formalities, “[t]hese procedures are not mere technicalities .... Validation of information from the official having custody is important to prosecuting officials in the receiving state.” (Citations omitted.) State v. Greenwood, 665 N.E.2d 579, 582 (Ind. 1996) (IAD’s 180 day speedy trial provision not triggered where defendant fails to present to custodial authorities notice of demand for speedy trial).

Even if we were to conclude that the petitioner had substantially complied with the article III procedures, we would not conclude that the detainer should be quashed because there was no delivery to trigger the commencement of the 180 day time period. “In State v. Braswell, [194 Conn. 297, 305, 481 A.2d 413 (1984), cert, denied, 469 U.S. 1112, 105 S. Ct. 793, 83 L. Ed. 2d 786 (1985)], [our Supreme Court] interpreted the 180 day provision to require the demanding state to bring the prisoner to trial within 180 days of the date on which the demanding state receives the prisoner’s request for final disposition and notice of place of imprisonment.” (Emphasis added; internal quotation marks omitted.) State v. Herring, supra, 210 Conn. 86. “[T]he IAD unquestionably requires delivery, and only after that has occurred can one entertain the possibility of counting the 180 days from the transmittal to the warden.” Fex v. Michigan, 507 U.S. 43, 50, 113 S. Ct. 1085, 122 L. Ed. 2d 406 (1993).

The petitioner argues that Braswell governs the disposition of his case. State officials are unquestionably bound by an independent duty to “ ‘promptly forward’ ” completed IAD documents. State v. Braswell, supra, 194 Conn. 303. Braswell does not, however, address the question of whether there is a duty to forward incomplete documents.

New Jersey, although aware to some degree of the petitioner’s desire to request a speedy disposition of the New Jersey charges, never received a request that complied with the IAD procedural guidelines. Although Connecticut officials provided the petitioner with documents when requested, the petitioner repeatedly disregarded the relevant procedures over a period of six years. Under those circumstances, it would run counter to the purpose of the IAD to order his detainer quashed when the petitioner was, in large part, responsible for any delays in the process. Additionally, it would run counter to the Fex decision to require that the 180 day clock commence before the request for speedy disposition is delivered to New Jersey, the requesting state.

The judgment is affirmed.

In this opinion the other judges concurred.

       The IAD is codified in Connecticut as General Statutes § 54-186.

       The petitioner, in his preliminary statement of issues, also claims that the court improperly concluded that it is a violation of the IAD to refuse to sign a document known as form 1, which provides notice of an untried indictment in another state and acknowledgment of the right to request a speedy disposition. The use of documents known as “forms” is the method of complying with IAD procedures that is employed in this jurisdiction. The petitioner’s claim is addressed in our analysis of his substantial compliance claim.

       The following forms are relevant to the facts of this case and are provided with their corresponding titles:
      Form 1 — Notice of Untried Indictment or Complaint and of Right to Request Disposition.
      Form 2 — Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments, Informations or Complaints.
      Form 3 — Certificate of Inmate Status.
      Form 4 — Offer to Deliver Temporary Custody.
      Form 5 — Request for Temporary Custody.

       Article III of General Statutes § 54-186 provides in relevant part: “(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of aparty state, and whenever during the continuance of the term of the imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that, for good cause shown in open court, 1 he prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
      “(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of correction or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
      “(c) The warden, commissioner of correction or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to malee a request for final disposition of the indictment, information or complaint on which the detainer is based. . . .”

       The respondent, in its brief, and the petitioner, in his reply brief, raise the issue of whether the petitioner was prejudiced by the delay. When assessing the “validity of a detainer . . . we . . . employ the Barker v. Wingo [407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972)] test to judge the significance of the IAD delays . . . .” Johnson v. Commissioner of Correction, supra, 60 Conn. App. 11, citing Barker v. Wingo, supra, 530. Of the four factors considered in the Barker test, courts consider prejudice to the defendant important in evaluating the sufficiency of IAD procedures. See State v. Herring, supra, 210 Conn. 90; Johnson v. Commissioner of Correction, supra, 10. Thus, a petitioner may be required to establish that he has been prejudiced by any delay before the detainer may be dismissed. See Johnson v. Commissioner of Correction, supra, 11. Because we conclude that the respondent was not under a duty to forward incomplete IAD forms, we need not reach the question of whether the petitioner was prejudiced by the respondent’s conduct.


author: PETERS, J.

text:
    STATE OF CONNECTICUT v. JOSEPH J. SANKO, JR.
    (AC 18787)
    Mihalakos, Pellegrino and Peters, Js.

      Argued October 24, 2000
    officially released February 27, 2001

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

      Denise B. Smoker, assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, state’s attorney, and Stephen M. Carney, assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The principal issue in this appeal is whether, under the circumstances of this case, the trial court properly decided, without a jury trial, that the defendant was subject to an enhanced criminal penalty pursuant to General Statutes (Rev. to 1997) § 53a-40b. In the underlying criminal proceeding, the court accepted a jury verdict finding the defendant guilty of, inter alia, two counts of manslaughter in the second degree with a motor vehicle. At the time of the defendant’s criminal misconduct, he had been released on a written promise to appear pending his sentencing on an unrelated criminal conviction. The defendant failed, at trial, to raise any of the issues that he now pursues on appeal. We affirm the judgment of the trial court.

In the first part of the information, the state charged the defendant, Joseph J. Sanko, Jr., with the commission of two counts of manslaughter in the second degree with a motor vehicle in violation of General Statutes § 53a-56b, one count of operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes (Rev. to 1997) § 14-227a (a) (l), one count of evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a) and one count of interfering with an officer in violation of General Statutes § 53a-167a. The factual predicate for these charges was the state’s allegation that the defendant, while intoxicated, had driven his motor vehicle so as to cause the death of two young women walking beside a public highway and had then run from the scene of the accident. Except for the count of interfering with an officer, a jury found the defendant guilty as charged under the first part of the state’s information.

In the second part of its information, the state alleged that, if the defendant was convicted of the charges alleged in the first part of the information, he should be sentenced in accordance with the enhanced penalty provisions of § 53a-40b. The second part of the information was based on the state’s representation that the alleged criminal acts had occurred while the defendant was free on a written promise to appear following his conviction of another crime. Agreeing with the state, the court concluded that the defendant was subject to an enhanced penalty.

Applying § 53a-40b, the court sentenced the defendant to a total effective sentence of imprisonment for thirty-five and one-half years, suspended after twenty-six and one-half years, with probation of five years. The defendant has appealed.

In this court, the defendant challenges both the validity of his manslaughter conviction and the propriety of the enhanced sentence ordered by the court. We are not persuaded of the merits of any of his unpreserved claims of impropriety.

I

INSTRUCTIONS ON MANSLAUGHTER

The defendant challenges the validity of his manslaughter conviction only with respect to three alleged misstatements in the court’s instructions to the jury. Because the defendant failed to raise any of these issues at trial, he is entitled to a review of their merits only if he properly can invoke the special rule of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) Id., 239-40. “The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. . . . This court may dispose of the claim on any one of the conditions that the defendant does not meet.” (Citation omitted.) State v. Heredia, 253 Conn. 543, 559-60, 754 A.2d 114 (2000).

The defendant claims that he is entitled to a new trial with respect to his manslaughter conviction because the court improperly instructed the jury on (1) the elements of the crime of manslaughter concerning the operation of a motor vehicle while under the influence of “intoxicating liquor and drugs and both,” (2) proximate cause and (3) the significance of the defendant’s mental, physical or nervous processes. Because none of these alleged defects in the court’s instructions warrants Golding review, we affirm his conviction.

A

The defendant claims that the court improperly advised the jury that it could find him guilty of violating § 53a-56b if it found that he had been operating his motor vehicle while under the influence of either liquor or drugs, contrary to the information, which alleged that he had operated “a motor vehicle while under the influence of intoxicating liquor and drugs.” (Emphasis added.) In its instruction to the jury on the manslaughter charges, the court advised the jury to disregard the conjunctive language of the state’s information and to convict if it found that the defendant had been driving “under the influence of either drugs or alcohol.” (Emphasis added.) The defendant concedes that there was an abundance of evidence proving that he was under the influence of intoxicating liquor, but claims that there was insufficient evidence to prove that he was under the influence of drugs.

This claim of instructional impropriety is not a claim of constitutional magnitude and therefore does not permit Golding review. “[A] factual insufficiency regarding one statutory basis, which is accompanied by a general verdict of guilty that also covers another, factually supported basis, is not a federal due process violation.” State v. Chapman, 229 Conn. 529, 539, 643 A.2d 1213 (1994); see Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991).

B

The defendant also claims that the court improperly instructed the jury on proximate cause. He maintains that the instructions were so misleading that they violated his due process rights. We find no Golding violation.

The defendant argues that § 53a-56b does not require any instruction on proximate cause. This court has ruled to the contrary in State v. Kwaak, 21 Conn. App. 138, 144, 572 A.2d 1015, cert, denied, 215 Conn. 811, 576 A.2d 540 (1990). Under Kwaak, the court must inform the jury that the state has the burden of proving that the defendant’s unlawful conduct was a proximate cause of the death of the victim. Id., 144-46. An accurate jury instruction cannot be the basis for a showing that the defendant was “clearly deprived ... of a fair trial.” State v. Golding, supra, 213 Conn. 240.

C

The defendant next claims that the court improperly defined the phrase “under the influence” in § 53a-56b and that the jury was likely to have been misled by the court’s improper instructions. According to the defendant, because the statute does not state that mental state is an element of the crime, the court improperly instructed the jury to consider his mental state at the time of the offense. Furthermore, he argues that the court misled the jury by giving it disparate instructions about the meaning of “operating under the influence” under the manslaughter statute and under the statute penalizing driving while intoxicated. Again, we are persuaded that the defendant has not raised a claim that is reviewable under Golding.

The court instructed the jury that, to convict the defendant under the manslaughter statute, it had to find that the defendant, “as a result of drinking such [intoxicating] beverage or introducing such drug or both into his system, his mental, physical or nervous processes have become so affected that he lacks to an appreciable degree the ability to function properly in relation to the operation of his motor vehicle.” This instruction was substantially similar to instructions that were approved in State v. Andrews, 108 Conn. 209, 216, 142 A. 840 (1928), and its progeny. See State v. McKenna, 11 Conn. App. 122, 129, 525 A.2d 1374, cert, denied, 205 Conn. 806, 531 A.2d 939 (1987). When the court repeated this basic instruction with respect to the count of operating under the influence, it used the same language except for a minor addition. Because the objections belatedly raised to the court’s instructions fail to demonstrate any impropriety whatsoever, we repeat our earlier observation that an accurate jury instruction cannot be the basis for a showing that a challenged court ruling “clearly deprived the defendant of a fair trial.” State v. Golding, supra, 213 Conn. 240.

II

ENHANCED PENALTY

The defendant’s final claim is that, even if his manslaughter conviction is affirmed, his sentencing violated his constitutional rights to due process. He maintains that it was unconstitutional for the court to determine, without a jury hearing, that the defendant was subject to an enhanced penalty pursuant to § 53a-40b. See footnote 1. Although this claim also was unpreserved at trial, it warrants further inquiry because it poses a constitutional question that the courts of this state have not previously decided. We conclude that the court acted properly.

The defendant argues that a jury hearing was constitutionally required (1) to enable him to obtain an evidentiary finding about his legal status when he committed the manslaughters and (2) to determine the applicability of the enhanced penalty statute under the factual circumstances found by the jury. We disagree.

The defendant cannot prevail on the first claim because of admissions that he made at trial. At the sentencing hearing held by the court, the defendant’s counsel conceded that the manslaughters had occurred while the defendant was released on a written promise to appear following a conviction of an unrelated crime. The defendant has proffered no reason why an evidentiary hearing is required in the absence of a factual dispute. He cites no authority for that proposition, and we know of none.

The defendant likewise cannot prevail on the second claim in light of the decisions of the United States Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Those cases hold that a jury hearing is not required for an enhanced sentence based on a prior conviction.

We recognize that the text of § 53a-40b, reprinted in footnote 1, does not refer expressly to a prior conviction as a predicate act that triggers an enhanced penalty. It focuses, instead, on the status of the defendant at the time when the defendant committed a second crime. In this case, the status of the defendant at that time was that, after conviction of the first crime, he had been released on a written promise to appear. This set of facts surely demonstrates the applicability of § 53a-40b. We need not decide today what the reach of the statute may be under other circumstances. In most cases, if not in all, a defendant’s status under the statute arises out of some antecedent encounter with the criminal justice system. The record of that antecedent encounter is a judicial record of which a court may take judicial notice. See State v. Carey, 228 Conn. 487, 497, 636 A.2d 840 (1994).

Under the circumstances of this case, therefore, decisions of the United States Supreme Court provide guidance on the due process rights that must be safeguarded in enhanced penalty proceedings following prior convictions. We find persuasive the recent discussion of this issue in the two recent cases cited previously.

In Almendarez-Torres, the defendant pleaded guilty to having been found in the United States after he had been deported as the result of his commission of three aggravated felonies. Although the maximum sentence for his present crime was two years in prison, under the federal enhanced penalty statute, his prior convictions exposed him to a sentence of up to twenty years. Almendarez-Torres v. United States, supra, 523 U.S. 227-29. The Supreme Court upheld the District Court’s decision to subject the defendant to an enhanced penalty without giving him the benefit of a jury hearing. Id., 247.

More recently, in Apprendi, the United States Supreme Court reaffirmed its ruling in AlmendarezTorres. It concluded that, under the United States constitution, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) Apprendi v. New Jersey, supra, 530 U.S. 490.

In language particularly germane to this case, the Supreme Court observed the following: “Both the certainty that procedural safeguards attached to any ‘fact’ of prior conviction, and the reality that [the defendant] did not challenge the accuracy of that ‘fact’ in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a ‘fact’ increasing punishment beyond the maximum of the statutory range.” (Emphasis added.) Id., 488. On this record as well, the defendant has conceded the fact of his prior conviction and, as far as we can tell, has failed to pursue appellate review of that conviction.

We conclude, therefore, that the court had constitutional authority to decide, without empaneling a jury, that the defendant’s prior conviction triggered an enhanced penalty under § 53a-40b. In the absence of any constitutional impropriety, there is no basis for Golding review of the defendant’s claim to the contrary.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1997) § 53a-40b provides: “A person convicted of an offense committed while released pursuant to sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, may be sentenced, in addition to the sentence prescribed for the offense to (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a misdemeanor.”

       General Statutes § 53a-56b provides: “(a) A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.
      “(b) Manslaughter in the second degree with a motor vehicle is a class C felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”

       General Statutes (Rev. to 1997) § 14-227a (a) provides: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       General Statutes § 14-224 (a) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical iqjury of any person to a police officer, a constable, a state police officer or an inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical iiqury of any person and his name, address, operator’s license number and registration number.”

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

       The defendant makes a perfunctory argument that his state constitutional rights were violated. We decline to review this state constitutional claim because it is inadequately briefed. See State v. Chapman, 229 Conn. 529, 541-42, 643 A.2d 1213 (1994).

       Even if the defendant’s argument possibly could be understood as a challenge to the accuracy of the instruction with respect to causation, he cannot prevail. See State v. Spates, 176 Conn. 227, 233-34, 405 A.2d 656 (1978), cert, denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979).

       In its instructions on the manslaughter charges and in its instruction on the charge of operating a motor vehicle while under the influence of liquor or drugs, the court used virtually the same language. On the manslaughter charges, the court informed the jury that “a person is under the influence of intoxicating liquor or any drug or both when, as a result of drinking such beverage or introducing such drug or both into his system, his mental, physical or nervous processes have become so affected that he lacks to an appreciable degree the ability to function properly in relation to the operation of his motor vehicle.” On the charge of operating a motor vehicle while under the influence of liquor or drugs, the court added to its previous instruction by stating the foEowing: “Such person’s physical or mental capabiEties must have been impaired to such a degree that the person no longer has the abiEty to drive a vehicle with the caution characteristic of a sober person of ordinary prudence under the same or simEar circumstances. Evidence of the manner in which a vehicle was operated is not determinative of whether the defendant was operating the vehicle under the influence of an intoxicating beverage, drug or both. It is, however, a factor to be considered in Eght of aE the proven surrounding circumstances in deciding whether [the] defendant was or was not under the influence.”

       The defendant has made no claim that the Connecticut constitution affords him greater relief than that to which he is entitled under the United States constitution. Accordingly, we express no opinion on that question.

       We need not decide, therefore, whether the defendant properly asserted, or indeed waived, a claim for a jury hearing.