author: Heiman, J.

text:
    Kimberly Gerhard v. Andre Veres
    (11213)
    Landau, Heiman and Schaller, Js.
    Argued December 10, 1992 —
    decision released February 2, 1993

      Deborah M. DelBuono, for the appellant (defendant).

      Mary Ann Rush, for the appellee (plaintiff).
   Heiman, J.

The defendant appeals from the trial court’s judgment awarding reasonable attorney’s fees to the plaintiff. On appeal, the defendant argues that the trial court improperly (1) awarded the plaintiff attorney’s fees of $5625 pursuant to General Statutes § 47a-13 where the underlying award to the plaintiff was only $40, and where the fees included compensation for the prosecution of unproven, unsuccessful and frivolous claims, and (2) considered the fact that the defendant had failed to offer any amounts of money to settle the matter prior to trial in its determination and award of attorney’s fees to the plaintiff. We disagree and affirm the trial court’s judgment.

The facts necessary to resolve this appeal may be summarized as follows. In July, 1987, the plaintiff entered into a month-to-month lease with the defendant for an apartment at 7 Brooksdale Street, Wolcott. In December, 1987, the plaintiff brought an action in five counts in the Housing Session of the Superior Court in the judicial district of Waterbury which was transferred to the judicial district court. The first count alleged that the defendant had failed to supply running water to the plaintiff’s residential apartment on a number of occasions in violation of General Statutes § 47a-13. The second count alleged that prior to leasing the premises to the plaintiff, the defendant failed to obtain a certificate of occupancy from the town of Wolcott. The third count alleged that the apartment was in violation of various health and fire code requirements. The fourth count alleged that on several occasions the defendant entered the plaintiff’s apartment without permission. The final count alleged that the defendant confiscated the plaintiff’s mail on several occasions. Among the remedies that the plaintiff sought were monetary damages, statutory damages pursuant to General Statutes § 47a-13, and reasonable attorney’s fees.

On January 28,1992, the trial court orally rendered judgment in open court in the plaintiff’s favor on the first count finding that the defendant had violated General Statutes § 47a-13 by not providing the plaintiff with running water for three days and awarded her $40 in damages. After finding that the plaintiff failed to meet her burden of proof on the other four counts, the court rendered judgment in the defendant’s favor on those counts. The trial court also set a hearing to determine whether the plaintiff was entitled to reasonable attorney’s fees. On February 28,1992, the trial court conducted the hearing by examining the parties’ briefs, by reviewing the plaintiff’s itemized affidavit of attorney’s fees and by hearing oral argument. At that hearing, the trial court awarded the plaintiff $5625 as attorney’s fees. This appeal followed.

I

The defendant argues that the trial court improperly awarded the plaintiff attorney’s fees of $5625 pursuant to General Statutes § 47a-13 where the underlying damage award was $40 and where the fees included compensation for the prosecution of “unproven, unsuccessful and frivolous claims.” He contends that the fees awarded were unreasonable for three reasons: “1. They are over 130 times the amount of the underlying award; 2. They include compensation for the prosecution of frivolous claims; 3. They included compensation for unproven and unsuccessful claims.” We disagree.

In its discretion, the trial court may award attorney’s fees in actions brought under the provisions of General Statutes § 47a-13. Moffitt v. Horrigan, 37 Conn. Sup. 873, 875, 441 A.2d 207 (1982). Subsection (b) of § 47a-13 provides in pertinent part that, “[i]n any cause of action . . . arising under subsection (a) of this section, the tenant may recover reasonable attorney’s fees.” (Emphasis added.) Section 47a-13 thus specifically affords relief to tenants, such as the plaintiff, whose landlords have failed to supply essential services, such as running water, by allowing the court in its discretion to award attorney’s fees. Id., 875-76.

To determine whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. Walton v. New Hartford, 223 Conn. 155, 169, 612 A.2d 1153 (1992). The trial court’s exercise of its discretion will be reversed only where the abuse of discretion is manifest or where injustice appears to have been done. State v. Young, 29 Conn. App. 754, 765, 618 A.2d 65 (1992).

Because the trial court is in the best position to evaluate the circumstances of each case, we will not substitute our opinion concerning counsel fees or alter an award of attorney’s fees unless the trial court has clearly abused its discretion. Moffitt v. Horrigan, supra, 876. The trial court properly could have found that the plaintiff’s attorney expended considerable time and effort in an attempt to vindicate her client’s statutory rights. The plaintiff’s attorney needed to prepare for and conduct a trial. The trial court reasonably could find that thirty-five and one-half hours was a reasonable amount of time for which to be compensated. Our review of the hearing reveals no abuse of discretion by the court in awarding attorney’s fees incurred by the plaintiff in prosecuting her claims to vindicate her rights as a tenant. Id.

II

The defendant also asserts that the trial court improperly considered the fact that the defendant had failed to make any offer to settle the matter prior to trial in its determination and award of attorney’s fees to the plaintiff. We are not persuaded.

At the hearing to determine if reasonable attorney’s fees should be awarded, the court noted that the defendant had never made an offer to settle the case. The court said that it did not consider this in its decision. It merely indicated that the trial could have been avoided by settlement. In justifying its decision, the court stated that the statute provided for reasonable attorney’s fees and it was not acting to punish the landlord for refusing to settle. If the defendant believed, despite the trial court’s statement to the contrary, that it did factor into its determination the defendant’s refusal to make an offer in settlement, it was the defendant’s obligation to produce a record adequate to support such a claim. See Daly v. DelPonte, 27 Conn. App. 495, 507, 608 A.2d 93 (1992). The record is devoid of any support for such an assertion.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the defendant did not contest the reasonableness of the plaintiffs counsel’s hourly rate.

       Additional facts will be set forth where they are relevant to each issue.

       The defendant’s contention that the fees awarded by the trial court were not reasonable because they included compensation for the prosecution of frivolous claims is equally without merit. Our Supreme Court has stated the test for determining whether an action is frivolous. Texaco, Inc. v. Golart, 206 Conn. 454, 463-64, 583 A.2d 1017 (1988). The court held that an appeal is frivolous if the party “ ‘desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.’ ” Id. The trial court found that the plaintiff’s four claims, although unsuccessful, were not frivolous. It repeatedly stated that these claims were brought in good faith. The plaintiff, however, had been unable to satisfy her burden of proof to prevail on the merits at trial. The defendant has the burden to prove that the action is frivolous and has failed to meet this burden. Id.

       The court stated that “the defendant here never offered one nickel. Now, that is the defendant’s right, and there is nothing improper about it, and attorney’s fees are not intended to be punitive, but we do have a situation where the legislature has enacted a statute that is, I believe, intended to provide a vehicle for tenants to pursue their statutory rights in the case, and I think the tenant here very properly did so. Your client stonewalled . . . never offered a nickel to settle a case that could and should, in my opinion, have been settled even when I tried to settle it on the eve of trial. This is not in any way punitive; I mean, it was tried and, you know, the chips fell as they may. But now we do have a statute that says that the fees should be paid to the tenant, not necessarily the prevailing tenant.”

       The plaintiff attempted to recoup additional attorney’s fees for prosecuting this appeal to vindicate her rights by incorporating an itemized list of such fees in her appendix. General Statutes § 47a-13, however, allows the trial court to award attorney’s fees. We discern no authority in this statute that also permits us to award such fees.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Holly Hill Holdings v. George D. Lowman et al.
    (10746)
    (11135)
    Dupont, C. J., Lavery and Freedman, Js.
    Argued October 1, 1992 —
    decision released January 14, 1993

      Robert L. Trowbridge, with whom, on the brief, was Ronald W. Lindlauf, Jr., for the appellants (defendants).

      Harold B. Finn III, with whom, on the brief, were Donna Nelson Heller, Richard W. Painter and Jennifer B. Rubin, for the appellee (plaintiff).
   Dupont, C. J.

This is an action to foreclose a purchase money mortgage. The defendants pleaded several special defenses and counterclaims. The case was referred to an attorney trial referee who recommended foreclosure of the mortgage after first determining that the special defenses did not lie and that the counterclaims did not defeat the plaintiff’s right to foreclosure. The trial court reviewed the findings and conclusions of the attorney trial referee and rendered a judgment of strict foreclosure and a judgment for the plaintiff on the defendants’ counterclaims.

The principal issue of this appeal is whether a purported nondisclosure of environmental problems by the plaintiff to the defendants is a defense to a foreclosure action or can serve as a counterclaim for damages. We conclude that the defendants have failed to assert a valid defense to the foreclosure action, and that the plaintiff’s failure to make certain disclosures to the state department of environmental protection (DEP), as required by § 22a-449 (d)-l (f) of the Regulations of Connecticut State Agencies concerning the nonresidential underground storage of oil and petroleum liquids (underground tank regulations), on the facts of this case, does not give rise to a private right of action that can be asserted by the defendants as a counterclaim for damages. We therefore affirm the judgment of strict foreclosure and the judgment of the trial court on the defendants’ counterclaim for damages.

Pursuant to paragraph thirteen of the purchase and sale agreement, the property itself was to be delivered, “as is. Title to the property was conveyed subject to a prior mortgage from the plaintiff to Carmela DaPra, which the grantees assumed. The property was also conveyed subject to “[s]uch state of facts as a personal inspection and accurate, up-to-date survey would disclose.” The “as is” provision in the sales agreement did not appear in the warranty deed. Immediately after delivery of the warranty deed, Aydagul quitclaimed his interest in the property to the defendant Klaus Beckmann. Beckmann later executed an assumption agreement whereby he agreed to assume all of Aydagul’s obligations and liabilities under the promissory note and mortgage.

The subject property consists of a house that had been converted into offices, a garage type building containing two repair bays, and an island on which gasoline pumps were previously situated. At the time of the original transfer of the property from the plaintiff to Aydagul and Lowman, the gasoline pumps had been removed. The evidence indicates that gasoline was last pumped on October 30,1985, shortly before the plaintiff took title to the property, and almost eight months before the plaintiff conveyed title to Aydagul and Lowman.

On November 7, 1986, Lowman and Beckmann granted a mortgage in the property to the Connecticut Savings Bank, and the proceeds of this mortgage were used to retire the debt owed to DaPra. The existing purchase money mortgage was made expressly subordinate to the new Connecticut Savings Bank mortgage by a contemporaneously executed subordination agreement between the plaintiff and the defendants. As a condition of the approval of the Connecticut Savings Bank mortgage, the bank required Lowman and Beckmann to remove the underground gasoline storage tanks from the property. Removal of the tanks was effectuated in April, 1987. Upon removal of the tanks, an odor of gasoline was detected and, as a consequence, the DEP was notified of the potential environmental problem. Subsequent tests revealed soil contamination but the contaminated soil was apparently never removed.

Although the property’s environmental problems were not discovered until the removal of the gasoline tanks in April, 1987, Lowman and Beckmann had stopped making payments on the purchase money mortgage as of February 2,1987. As a result of Low-man and Beckmann’s default on their mortgage obligations, the plaintiff initiated a foreclosure action against all three defendants by complaint dated July 31, 1987. In its complaint, the plaintiff also sought a deficiency judgment. After the complaint was filed, but before the defendants had filed their answers, Lowman quitclaimed his interest in the property to Beckmann.

All three defendants filed almost identical special defenses and counterclaims, alleging that the plaintiff had failed to comply with certain environmental disclosure and reporting obligations as required by the underground tank regulations promulgated by the commissioner of environmental protection pursuant to authority granted by General Statutes § 22a-449 (d) (underground tank statute). The defendants further alleged that due to the environmental problems, the plaintiff breached the warranties contained in the warranty deed because the premises were not marketable and were encumbererd by an environmental lien by virtue of General Statutes § 22a-452a.* ** The defendants claimed that they would not have purchased the premises under the same terms and conditions had they known of the “true status of the title,” or had they known of the plaintiffs failure to comply with the underground tank regulations. The three defendants, by essentially identical counterclaims, sought damages because of the alleged noncompliance with the underground tank regulations and the alleged breach of warranties in the plaintiffs warranty deed to Aydagul and Lowman.

The case was referred to an attorney trial referee who heard evidence for four days between June 14 and September 23, 1988. The hearing encompassed testimony from eleven witnesses and included nearly fifty exhibits. On July 25, 1989, the attorney trial referee issued a fourteen page report expounding his findings and recommendations. The report noted that, “[djespite the extensive factual record, very few contested issues were raised.” The attorney trial referee determined that all parties knew of the property’s past use as a gasoline station and of the existence of the underground storage tanks at the time of the original transfer, and that no environmental liens had been placed on the property. The attorney trial referee also found Beckmann to be in default under the terms of the note held by the plaintiff and found Beckmann’s conduct to be “as consistent with a debtor unable to pay as it is with one seriously concerned with the environmental problems facing the property.”

On the basis of these findings of fact, the attorney trial referee concluded that (1) Aydagul and Lowman agreed to purchase the property “as is” and that the special defenses and counterclaims raised by the defendants were extinguished by the warranty deed, (2) Beckmann could not raise defenses related to the failure of the plaintiff to file certain environmental reports because of his lack of privity with the plaintiff, and also because the covenant against such encumbrances is personal in nature and does not run with the land, and Beckmann lacked privity with the plaintiff, (3) title to the property was not unmarketable, and (4) the plaintiff, pursuant to its rights under the note and mortgage, was entitled to foreclose on the property. The attorney trial referee therefore recommended “that a judgment of foreclosure be entered into against the defendants in accordance with this report.”

Following issuance of the attorney trial referee’s report, the defendants moved to correct the report and objected to the acceptance of the report. On April 5, 1990, the trial court issued a memorandum of decision remanding the case to the attorney trial referee for further analysis of the defendants’ alleged defense that the plaintiff knowingly failed to comply with the reporting requirements of § 22a-449 (d)-l of the underground tank regulations.

The plaintiff, by letter dated February 21, 1991, requested that the trial court expedite the conclusion of the case, complaining that it had been attempting to foreclose on the mortgage for more than three years. On March 1,1991, the defendants moved for a mistrial and revocation of reference, claiming that “it would be impossible for any finder of fact to make reasonable and proper determinations as to the credibility of witnesses, their demeanor and other factual concerns” because testimony was last heard by the attorney trial referee on September 23, 1988, almost two and one-half years prior to the motion. On March 19, 1991, before the court acted on the defendants’ motion, the attorney trial referee filed his supplemental report.

The attorney trial referee’s supplemental report stated that the issue to be decided “is whether the admitted noncompliance with [underground tank regulation § 22a-449 (d)-l] presents a defendant with any viable defense to the foreclosure or a viable counterclaim for some or all of the cost of any environmental clean-up.” The attorney trial referee answered this in the negative, stating that “after a full review of the supplemental memoranda and the applicable law, the undersigned remains convinced that the plaintiff’s noncompliance with this regulation is not a valid defense to the present foreclosure action and does not give rise to the private right of action that the defendants’ counterclaim seeks. . . . It seems clear from the construction of the statute and regulations that this regulation was not intended to be utilized as a defense or remedy by private parties claiming technical violations of the statute.”

The attorney trial referee’s findings of fact, conclusions and recommendations were accepted by the trial court. The plaintiff thereupon filed a motion for a judgment of strict foreclosure, which was granted on February 10,1992. The defendants appeal from the judgment for the plaintiff on the counterclaims, and from the judgment of strict foreclosure.

I

Before deciding the merits of the case, we must first address the defendants’ argument that the excessive delay between the conclusion of testimony and the issuance of a report by the attorney trial referee, and the subsequent delay between the trial court’s remand and the issuance of the attorney trial referee’s supplemental report mandate that the reports be revoked or a mistrial declared. In support of their position, the defendants urge this court to apply the so called “120 day rule,” set forth in General Statutes § 51-183b to attorney trial referees by judicial fiat, notwithstanding our express holding to the contrary in Kupstis v. Michaud, 20 Conn. App. 425, 567 A.2d 1253 (1989), appeal dismissed, 215 Conn. 435, 576 A.2d 152 (1990), and Kowalsky Properties, Inc. v. Sherwin-Williams Co., 7 Conn. App. 136, 507 A.2d 43 (1986). Alternatively, the defendants argue that Practice Book § 430A, which became effective October 1,1990, and expressly makes the 120 day rule applicable to attorney trial referees, should be given retroactive effect so as to apply to this case. We conclude that the 120 day rule now applicable to the reports of an attorney trial referee should not apply in this case.

General Statutes § 51-183b requires that any trial judge or state trial referee who has the power to render judgment must do so within 120 days from the completion of the trial. Both this court and our Supreme Court have refused to apply this statute to attorney trial referees by judicial construction, instead calling for a change in the appropriate provisions of the rules of practice. See Kupstis v. Michaud, supra, 215 Conn. 437. The rules of practice were subsequently amended by the addition of § 430A, which expressly makes the 120 day rule applicable to attorney trial referees.

Practice Book § 430A did not become effective until well after the original report of the attorney trial referee in this case was issued. Section 430A was also not yet in effect at the time the case was remanded to the attorney trial referee for supplemental findings, although it did become effective prior to the issuance of the supplemental report. On the basis of this sequence of events, the defendants urge that § 430A should be given retroactive effect so as to invalidate either the original report or its supplement. This argument has previously been raised and rejected in New Canaan Bank & Trust Co. v. Cerretani, 26 Conn. App. 929, 600 A.2d 332 (1991) (per curiam).

In New Canaan Bank & Trust Co., the attorney trial referee’s report was filed on October 3,1990, more than 120 days after the completion of the trial and two days after Practice Book § 430A became effective. The trial court held that the 120 day rule was substantive in nature, and thus should not be given retroactive effect. The trial court, therefore, rejected the defendant’s claim that it lacked personal jurisdiction because the report was untimely, and concluded that § 430A applies only to trials completed after the rule’s effective date. We subsequently affirmed the decision of the trial court in that case and similarly affirm the decision of the trial court in this case.

II

The principal basis for the defendants’ appeal is that the plaintiff’s purported nondisclosure of the environmental problems associated with the property may be asserted by the defendants as either a defense to the foreclosure action, or as a counterclaim for damages. The foundation of this argument is that the provisions of the underground tank statute and its attendant regulations require a seller of real property to disclose the existence of certain environmental problems associated with the property to prospective purchasers and also report those problems to the DEP. Specifically, the defendants claim that § 22a-449 (d)-l (f) of the regulations was violated, and that such violation provides them with a right of action. The defendants do not rely on General Statutes § 22a-134b. See Practice Book § 109A (a). We conclude that the plaintiff had no duty of disclosure to the defendants under the cited regulations, and that the defendants may not successfully assert a counterclaim based on the failure of the plaintiff to make the disclosures to the DEP required by the regulation.

The plaintiff argues that it was not required to make any disclosures to the defendants pursuant to the act or regulations relating to the underground storage tanks because the property constituted either an “abandoned facility” or a “temporarily out-of-service facility” under the regulations. See Diamond v. Marcinek, 27 Conn. App. 353, 606 A.2d 1001, cert. granted, 223 Conn. 910, 612 A.2d 55 (1992). The plaintiff does concede that irrespective of the property’s status under the regulations, it was still required to provide notice to the DEP under § 22a-449 (d)-l (d) of the regulations and that it failed to do so. The plaintiff argues, however, that no private right of action, either express or implied, exists under the act or regulations for failure to comply with this notice provision, and, thus, its failure to make the required disclosures to the DEP cannot be asserted by the defendants as a counterclaim. The plaintiff further alleges that, even if Lowman and Aydagul could assert a counterclaim against it due to its failure to make disclosures to the DEP, Beckmann certainly could not assert such a claim as he acquired his interest from Lowman and Aydagul.

A

The first question to be determined is whether the plaintiff had any duty of disclosure to the defendants under the provisions of the underground tank regulations. Section 22a-449 (d)-l (f) of the regulations specifically requires that an owner or operator of “any new or existing facility” who wants to transfer ownership, possession or control of that facility must disclose certain information to the transferee. The terms “new facility” and “existing facility” are defined in § 22a-449 (d)-l (a). An “existing facility” is defined as “a facility the construction or installation of which began prior to the effective date of the regulations,” while a “new facility” is defined as “a facility the construction or installation of which begins on or after the effective date of these regualtions . . . .” The effective date of the regulations is November 1,1985. It is undisputed that the property had been used as a gasoline station sometime prior to November 1, 1985. The regulations also refer to “temporarily out-of-service” facilities and to “abandoned” facilities. A “temporarily out-of-service” facility is one “not in use, in that no regular filling or drawing is occurring; or not established and maintained in accordance with these regulations; or not regularly attended and secured,” while an “abandoned” facility is one “rendered permanently unfit for use.” Regs., Conn. State Agencies § 22a-449 (d)-l (a).

The definitions of new and existing facilities are concerned with whether their construction or installation began after or before the effective date of the regulations. These definitions are silent as to whether the facility need remain in use after the installation or construction began. The words “began” and “begins” in the definitions, coupled with that silence, imply that the use of the facility continues. In contrast to new or existing facilities, temporarily out of service facilities and abandoned facilities refer to facilities that are no longer functional. If the definition of existing facility is read to mean any facility where construction or installation began before the date of the regulations, without regard to whether it is presently in use, there is an Alice in Wonderland result. If the definition of an existing facility is not read to mean a facility still in service, an existing facility could mean a facility that is no longer functional or in existence.

The facility in this case falls within the definition of a temporarily out of service facility. It was not in use at the time of the transfer to the defendants, it was not established and maintained in accordance with the regulations because its use as a facility had ended before the regulations were effective, and it was not regularly attended and secured. The classification of facilities as new or existing or as temporarily out of service creates different obligations. An ongoing use of a new or existing facility, whether it began before or after the effective date of the regulations, requires certain disclosures to a transferee under § 22a-449 (d)-l (f), whereas the temporarily out of service or abandoned facilities requires disclosure of certain information to only the commissioner of the DEP.

At the time of the initial transfer of the property from the plaintiff to Lowman and Aydagul in June, 1986, the property fell within the definition of a temporarily out of service facility. Because the property here constitutes a temporarily out of service facility under the regulations, any transferor is required to notify only the commissioner of the DEP as to the existence of the facility and notification to the transferee is not required under § 22a-449 (d)-l (d) (4). Section 22a-449 (d)-l (f) does not apply. Thus, the plaintiff was not required under the regulations to make any disclosure to either Lowman or Aydagul upon transfer of the property.

B

Although the plaintiff owed no duty of disclosure to the defendants, it was required, under the express language of § 22a-449 (d)-l (d) (4), to “notify the commissioner of the location, type and capacity of such facility and the date it was abandoned or removed from service.” This the plaintiff admittedly did not do. The defendants claim that the plaintiff’s failure to give such notice may be asserted as a defense in a foreclosure action, and also in a separate counterclaim for damages arising from the nondisclosure. We conclude that a private right of action does not exist under the regulations for the failure to make disclosures to the DEP as required under § 22a-449 (d)-l (d) (4).

The express language of § 22a-449 (d)-l (d) (4) requires the owner or operator of any abandoned or temporarily out of service facility to notify state officials of the existence of such facility’s location, type and capacity. The purpose of this requirement is to alert state officials to the existence of these facilities so that they may be monitored by the state, as trustee of the environment. General Statutes §§ 22a-la, 22a-15. Neither § 22a-449 (d)-l (d) nor any other provision of the act or regulations expressly provides that a private party may assert a cause of action or seek damages based on another’s failure to provide notice to the DEP as required by § 22a-449 (d)-l (d). In fact, the act and regulations do not provide for enforcement of the reporting requirements by the DEP or the state itself. Compare General Statutes § 22a-451 (a) (providing that upon request of the commissioner, the attorney general shall bring a civil action against any person, firm or corporation that directly or indirectly causes pollution and contamination of any land or waters of the state). Any right of action that the defendants might assert must therefore necessarily be implied from the regulations or the act itself. In order to ascertain whether the legislature intended to create such an implied right of action under § 22a-449 (d)-l (d), we must look to other similar provisions of the act and its regulations.

We begin by observing that in General Statutes § 22a-134b, the legislature specifically provided for the recovery of damages by the transferee of property used as a “service station” from the transferor if the transferor failed to comply with the reporting requirements of General Statutes § 22a-134a. Thus, when the legislature intended to create a private right of action it did so, and it did so expressly. See, e.g., General Statutes § 22a-16 (“any person . . . may maintain an action . . . for declaratory and equitable relief against . . . any person . . . for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction”); General Statutes § 22a-452 (“[a]ny person . . . which contains or removes or otherwise mitigates the effects of . . . hazardous wastes . . . shall be entitled to reimbursement from any person ... for the reasonable costs expended for such containment, removal, or mitigation, if such . . . pollution or contamination .... resulted from the negligence or other actions of such person”); see also Connecticut Water Co. v. Beausoleil, 204 Conn. 38, 44, 526 A.2d 1329 (1987) (holding that the Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20, authorizes injunctive or declaratory relief but does not authorize a private claim for damages). The legislature could have provided for a private right of action under the underground tank act but chose not to do so. See Middletown v. Hartford Electric Light Co., 192 Conn. 591, 596, 473 A.2d 787 (1984) (“[w]hen the legislature has authorized supplementary private causes of action, it has generally done so expressly”).

Additionally, General Statutes § 22a-438 (a) provides that any person who violates any provision of chapter 446k of the General Statutes, which includes § 22a-449 (d), shall be assessed a civil penalty not to exceed $25,000. Such penalty is to be recovered through means of a civil action instituted by the attorney general upon request of the commissioner of the DEP. The right to maintain a private right of action is conspicuously absent from this provision.

We conclude that the regulations do not create an implied right of action for their violation, and thus no private right of action may be asserted by a transferee against a transferor for the transferor’s failure to make disclosures to the DEP as required by § 22a-449 (d)-l (d).

Ill

The defendants next claim that because of the property’s environmental problems, the plaintiff breached the warranties in the warranty deed given by the plaintiff to Lowman and Aydagul, thus conveying unmarketable title. Specifically, the defendants claim that “[m]arke table title was not conveyed herein because the environmental problems and contamination of the site precluded the property from being mortgaged and, indeed, precluded the property from being sold at a fair price to reasonable purchasers.” We find that although the subject property may be difficult to mortgage or sell, such difficulty arises from the physical condition of the property and not from a defect in the chain of title. The plaintiff did not breach any of the warranties of title contained in the warranty deed and thus the property’s title is not unmarketable.

As the defendants correctly point out, “[a] marketable title is one that can be sold ‘at a fair price to a reasonable purchaser or mortgaged to a person of reasonable prudence as a security for the loan of money.’ ” Frank Towers Corporation v. Laviana, 140 Conn. 45, 52, 97 A.2d 567 (1953), quoting Perkins v. August, 109 Conn. 452, 456, 146 A. 831 (1929); see also Frimberger v. Anzellotti, 25 Conn. App. 401, 408, 594 A.2d 1029 (1991). “To render a title unmarketable, the defect must present a real and substantial probability of litigation or loss.” Frank Towers Corporation v. Laviana, supra, 52-53. Undoubtedly, the property may be potentially difficult to sell or mortgage due to the environmental problems associated with it, but these problems do not impair the property’s title. Difficulty in selling or mortgaging the property is a function of the lessening of its economic value by the potential cost of cleanup; it is not due to a defect in the property’s chain of title.

The only effect on the property’s title is the possibility that the state might file an environmental lien on the property pursuant to General Statutes § 22a-452a to ensure reimbursement of any money expended by the state in the operation of cleaning up the property. The state has yet to file such a lien, and the filing of such lien could be avoided by the prompt payment of any cleanup costs by the defendant. The environmental problems associated with the property do not violate any of the warranties of title contained in the warranty deed, and thus the plaintiff did not convey unmarketable title to Aydagul or Lowman.

Moreover, any breach of warranty claims arising out of the purchase and sale agreement, as opposed to claims arising out of the warranty deed, with respect to the condition of the property itself were negated by the “as is” clause of that agreement. The seventh numbered paragraph of the purchase and sale agreement states in its entirety: “The Purchaser has inspected said premises and is satisfied with the physical condition thereof and agrees to accept said premises in their present condition on an “as is” basis. Neither Seller nor his representatives has made any representations or warranties as to said premises on which Purchaser has relied other than as expressly set forth in this agreement.” Additionally, the thirteenth numbered paragraph states in its entirety: “The Seller agrees to deliver exclusive possession of the premises, as is, and all keys to the Purchaser simultaneously with the closing of title provided for herein. Purchaser shall have the right to make a final inspection of the premises prior to the closing of title.” In the original agreement, the preprinted words “broom clean” were crossed out and “as is” typed in.

The parties’ intent with respect to the physical condition of the property and any warranties related to that condition is clear from the words of the agreement, and is farther confirmed by the manual alteration made in paragraph thirteen. To hold now that the plaintiff in fact had made warranties to the buyers concerning the condition of the property, or that those warranties have been breached, would be fundamentally inconsistent with the clear and unambiguous wording of the cited provisions. The plaintiff disclosed to the purchasers that the property had previously been used as a gas station, and, in fact, the purchasers intended to use the property for an auto repair business. There is no evidence that the plaintiff knew, or should have known, anything more than the purchasers about the existence of the underground storage tanks, or possible contamination therefrom.

It was the clear intent of the plaintiff to transfer, and the purchasers to accept, the property “as is” and without “any representations or warranties as to the premises . . . other than expressly set forth in [the purchase and sale] agreement.” We conclude that the attorney trial referee’s determination that the defendants were not entitled to damages, as adopted by the trial court, was correct.

The judgment of strict foreclosure is affirmed and the case is remanded with direction to set new law days. The judgment for the plaintiff on the defendants’ counterclaims is affirmed.

In this opinion the other judges concurred.

       The promissory note and mortgage deed were originally executed by defendants Al Aydagul and George Lowman. At the time of the suit to foreclose the mortgage, defendant Klaus W. Beckmann and defendant Low-man were the title holders. By the time of the trial, defendant Beckmann alone was the title holder. The three defendants filed essentially identical special defenses and counterclaims.

       Section 22a-449 (d)-l (f) (1) of the Regulations of Connecticut State Agencies, promulgated by the commissioner of environmental protection pursuant to authority granted by General Statutes § 22a-449 (d), provides in its entirety: “No owner or operator shall transfer ownership, possession or control of any new or existing facility without full disclosure to the transferee of the status of the facility with respect to compliance with these regulations at least fifteen (15) days prior to the transfer. Such disclosure shall include an up-to-date copy of the information submitted to the commissioner pursuant to subsection (d).”

       It is not disputed that a violation of General Statutes § 22a-134b could give rise to a private cause of action by a transferee against a transferor. See footnote 12, infra.

       The purchase agreement was a preprinted form to which various changes had been made. Paragraph thirteen of the purchase agreement stated that “[t]he Seller agrees to deliver exclusive possession of the premises, as is . . . .’’In paragraph thirteen, the preprinted words after the word “premises” had been crossed out on a typewriter and the words “as is” typed in above.

       The only other restriction in the warranty deed was a preprinted boilerplate clause stating that “[s]aid premises are subject to applicable Zoning and Planning Laws and Regulations, and to any municipal and sewer taxes payable after the date hereof.”

       General Statutes § 22a-449 (d) provides in relevant part: “The commissioner of environmental protection in consultation with the commissioner of public safety may establish by regulations adopted in accordance with the provisions of chapter 54 standards and criteria for the nonresidential underground storage of oil, petroleum and chemical liquids . . .

         The original answer alleged that the premises were “encumbered pursuant to [General Statutes §] 22a-45a.” No such section existed in the statutes, however, and the parties refer to § 22a-452a in their briefs. Section 22a-452a provides in relevant part that “[o]n and after June 3, 1985, any amount paid by the commissioner of environmental protection . . . to contain and remove or mitigate the effects of a spill shall be a lien against the real estate on which the spill occurred or from which it emanated in accordance with the provisions of this section . . . .” There is no evidence that the DEP has expended any money to rectify the environmental problems associated with the property involved in this case.

       The trial court never specifically ruled on this issue, as it never made a ruling on the defendants’ motion for mistrial and revocation of reference that was filed on March 19, 1992, or on their objections to the acceptance of the report of the attorney trial referee or their exceptions to the factual findings of the attorney trial referee, both filed April 1, 1991. The court did, however, impliedly deny the defendants’ request by accepting the findings, conclusions and recommendations of the attorney trial referee in its October 9,1991 memorandum of decision, wherein it stated: “I find no material error in the recommendations, or any other reason why the report is unacceptable.” Moreover, the defendants sufficiently pursued this issue with the trial court by not only making the initial motion for a mistrial and revocation of reference, but by also including it in their subsequent objections and exceptions to the report. We conclude, therefore, that this claim was properly preserved for our review.

       General Statutes § 51-183b provides: “Any judge of the superior court and any state trial referee who has the power to render judgment, who has commenced the trial of any civil cause, shall have power to continue such trial and shall render judgment not later than one hundred and twenty days from the completion date of the trial of such civil cause. The parties may waive the provisions of this section.”

       Practice Book § 430A provides: “An attorney trial referee to whom a case has been referred shall file a report with the clerk of the court, with sufficient copies for all counsel, within one hundred and twenty days of the completion of the hearing before such referee.”

       In this foreclosure action, it is important to note that the complaint and counterclaim relate to a purchase money mortgage and therefore Practice Book § 116 is satisfied. See Practice Book § 116 (“[i]n any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiffs complaint”). In view of our disposition of this case, it is unnecessary to address the allegations made in the defendants’ special defenses. It is apparent, however, that the special defenses do not comply with Practice Book § 164 because they do not assert that the plaintiff has no cause of action for the foreclosure of its mortgage. See Practice Book § 164 (“No facts may be proved under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding, that he has no cause of action, must be specially alleged”).

       The trial court agreed with the attorney trial referee that a private cause of action does not exist for a violation of § 22a-449 (d)-l (f) of the regulations, but that such a private right of action does exist under General Statutes § 22a-134b.

       The petition for certification was limited to the following question: “In the circumstances of this case, was the plaintiff entitled to rescission and restitution relating to rescission because of the defendants’ failure to disclose the existence of a service station in violation of General Statutes §§ 22a-134 or 22a-134a or applicable administrative regulations?” Diamond v. Marcinek, 223 Conn. 910, 612 A.2d 55 (1992). It is therefore not applicable to the present case.

       Section 22a-449 (d)-l (d) (4) of the Regulations of Connecticut State Agencies provides: “By May 8, 1986, the owner or operator of an abandoned or temporarily out-of-service facility shall notify the commissioner of the location, type and capacity of such facility and the date it was abandoned or removed from service.”

       The plaintiff also notes that neither Aydagul nor Lowman complied with the notice requirements that they seek to impose on the plaintiff when they transferred their interest to Beckmann.

       Even though the plaintiff asserts that notice to the purchasers was not required under the regulations, the plaintiff points out that such notice was given to the purchasers at the time of closing. At the closing, the plaintiff gave the purchasers an affidavit that stated: “The said premises were last used as a gasoline, automobile repair and service station on October 30, 1985, and gasoline was last pumped from the premises on said date. This Affidavit is made to induce A1 Aydagul and George D. Lowman to purchase the said premises and with knowledge that they will rely herein.”

       Although we conclude that the facility is a temporarily out of service facility, it might also have been classified as an abandoned facility because the removal of the gas pumps may have rendered the facility permanently unfit for use.

       Although Diamond v. Marcinek, 27 Conn. App. 353, 360-61, 606 A.2d 1001, cert. granted, 223 Conn. 910, 616 A.2d 55 (1992), states that, on the facts of the case, the facility in question may be technically classified as an existing facility, it holds that the facility is an abandoned or temporarily out of service facility.

       Obviously, if the plaintiff owed no duty of disclosure to either Low-man or Aydagul, who were in direct privity of contract with it, the plaintiff owed no duty of disclosure to Beckmann, with whom it had no privity.

       See footnote 11, supra.

       General Statutes § 22a-134b provides in its entirety: “damages. Failure of the transferor to comply with any of the provisions of sections 22a-134 to 22a-134d, inclusive, entitles the transferee to recover damages from the transferor, and renders the transferor of the establishment strictly liable, without regard to fault, for all cleanup and removal costs and for all direct and indirect damages.”

       General Statutes § 22a-452a provides in pertinent part: “state lien AGAINST REAL ESTATE AS SECURITY FOR AMOUNTS PAID TO CLEAN UP HAZARDOUS WASTE, (a) On and after June 3,1985, any amount paid by the commissioner of environmental protection ... to contain and remove or mitigate the effects of a spill shall be a lien against the real estate on which the spill occurred or from which it emanated ....
      “(b) A lien pursuant to this section shall not be effective unless (1) a certificate of lien is filed in the land records of each town in which the real estate is located . . . and (2) the commissioner mails a copy of the certificate to such persons and to all other persons of record holding an interest in such real estate over which the commissioner’s lien is entitled to priority. . . .
      “(c) Except as provided in subsection (a), such lien shall take precedence over all transfers and encumbrances recorded on or after June 3, 1985


author: Landau, J.

text:
    State of Connecticut v. Julio Rivera
    (10362)
    O’Connell, Lavery and Landau, Js.
    Argued September 30, 1992 —
    decision released February 2, 1993

      Susan A. Brown, assistant public defender, with whom, on the brief, was Adam Teller, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and T. R. Paulding, former assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant was convicted, after a trial to the court, of rioting at a correctional institution in violation of General Statutes § 53a-179b (a). On appeal, the defendant claims that the trial court improperly (1) rejected the defendant’s argument that General Statutes § 53a-179b (a) is unconstitutionally vague and overbroad, and (2) failed to grant the defendant’s motion for judgment of acquittal on the basis of insufficient evidence. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On June 25, 1990, a riot occurred at the Carl Robinson Correctional Institution. Inmates had posted fliers the previous weekend calling for a strike. Between 6 and 7 a.m. on the morning of the riot, correction officials noticed that few inmates were entering the mess hall for breakfast. This was considered unusual. Groups of inmates gathered in an open area known as “the circle,” which is adjacent to several correctional buildings. A large group of inmates were at picnic tables in the circle and these inmates were heckling those inmates who were entering the mess hall for breakfast.

Correction officials made announcements over the public address system ordering the inmates to clear the yard. Officers Gary Reilly and Peter McDevitt walked around the circle to determine what was happening. As they walked around the circle, they focused their attention on the group of inmates at the picnic tables. At that time, Reilly recognized the defendant as being in that group. The officers approached that group and were surrounded by four inmates who began to “bump” them. The defendant was on a picnic table. Reilly felt that the situation was getting very serious and radioed the officials operating the public address system and told them not to make any more announcements. Despite his requests, two more orders to clear the yard were broadcast. A group of about 200 inmates began to march around the circle, shouting loudly. McDevitt observed the defendant with approximately ten other inmates near the front of this group.

Reilly ran to the front of the group and attempted to calm the inmates. Despite his attempts, the disturbance escalated into a full-fledged riot. Inmates began running in all directions, throwing rocks and setting fires. Some inmates displayed a banner demanding media coverage. The inmates looted some buildings and burned others. Using tear gas, the correctional emergency response team restored order several hours later.

At trial, the defendant presented evidence in support of his claims that he was not part of the mob of inmates involved in the riot. The defendant also attacked the identification made by McDevitt.

After the trial court found the defendant guilty, the defendant filed a motion for judgment of acquittal, which the court denied. The trial court stated that it found the identification of the defendant by McDevitt credible. The trial court also found (1) that the defendant had disobeyed the order to clear the yard when he remained seated on the picnic table, and (2) that, by not complying with the order to clear the yard, the defendant did aid, abet, assist and take part in a disorder in violation of General Statutes § 53a-179b (a).

I

A

The defendant claims that General Statutes § 53a-179b is unconstitutionally vague on its face and should not be enforced. We disagree. Ordinarily, when a litigant challenges a statute as void for vagueness under the United States or state constitution, we confine our inquiry to the statute’s applicability to the facts of the case. State v. Cavallo, 200 Conn. 664, 670, 513 A.2d 646 (1986); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984). Where, however, a challenged statute, if vague, could intrude on fundamental constitutional guarantees such as first amendment rights, we will refuse to enforce the statute if we find that it is unconstitutionally vague on its face. State v. Cavallo, supra; see Smith v. Goguen, 415 U.S. 566, 573 n.10, 94 S. Ct. 1242, 39 L. Ed. 2d 605 (1974); Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Smith v. California, 361 U.S. 147, 151, 80 S. Ct. 215, 4 L. Ed. 2d 205 (1959).

“Our inquiry into the facial validity of a statute focuses on whether indefiniteness in the meaning of the statute could reasonably create uncertainty over whether the statute prohibits expression that is protected by the first amendment. Such ambiguity is unconstitutional for two reasons: (1) it may deter individuals from exercising their first amendment freedoms for fear of incurring criminal liability; and (2) it vests enforcement officials with undue discretion to interfere with the right to freedom of speech.” State v. Cavallo, supra, 671; see Smith v. Goguen, supra, 573-76; Grayned v. Rockford, supra, 109; State v. Pickering, 180 Conn. 54, 57-58 n.3, 428 A.2d 322 (1988).

Section 53a-179b was authoritatively construed and upheld in State v. Roque, 190 Conn. 143, 460 A.2d 26 (1983). Our Supreme Court held that “[b]y the use of the words ‘incites,’ ‘instigates,’ ‘organizes,’ ‘connives at’ and ‘causes,’ the statute makes those who commence, in the sense of plan, begin or start an occurrence proscribed by the second portion of the statute, whether organized or spontaneous, subject to conviction of a class B felony. In like manner, the statute, by use of the words ‘aids,’ ‘abets,’ ‘assists’ or ‘takes part in,’ does the same to those who join in any such occurrence. In short, although nine separate verbs are used, their common meanings and their association with each other causes them to fall into two groups: those that cover the leaders or planners and those who follow them in the proscribed occurrence, whether it is organized or spontaneous.” Id., 152-53. Roque teaches us that this statute is not unconstitutionally vague. Actions that violate the statute are clearly set forth and there is no ambiguity as to its meaning. Therefore the defendant’s claim must fail.

Nor is this statute unconstitutionally vague as applied to the facts of this case. “ ‘In order to surmount a vagueness challenge, “a statute must afford a person of ordinary intelligence a reasonable opportunity to know what is permitted or prohibited.” McKinney v. Coventry, 176 Conn. 613, 618, 410 A.2d 453 (1979). The constitutional requirement of definiteness applies more strictly to penal laws than to statutes that exact civil penalties. Winters v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 2d 840 (1948). . . .’ State v. Schriver, 207 Conn. 456, 460-61, 542 A.2d 686 (1988).” State v. Palangio, 24 Conn. App. 300, 302-303, 588 A.2d 644 (1991). A penal statute may survive a vagueness attack solely on a consideration of whether it provides fair warning. State v. Pickering, supra, 61.

State v. Roque, supra, provides adequate warning that the defendant’s conduct is prohibited by § 53a-179b. The defendant was identified as having been among those inmates at the front of the group that marched around the circle prior to the beginning of the full-fledged riot. The defendant refused to obey the order to clear the yard. He also refused to heed Officer Reilly’s attempt to prevent the escalation of the inmates activities. By refusing to cooperate with the attempts to maintain calm, and by marching around the circle with the inmates, the defendant did aid, abet, assist and take part in this disorder in violation of § 53a-179b.

B

The defendant’s next claim is that § 53a-179b is unconstitutionally overbroad. We disagree.

The doctrines of vagueness and overbreadth are so closely related that “[sjometimes the two are functionally indistinguishable.” Note, “The First Amendment Overbreadth Doctrine,” 83 Harv. L. Rev. 844, 845 n.5 (1970). The essence of an overbreadth challenge is that a statute that proscribes certain conduct, even though it may have some permissible applications, sweeps within its proscription conduct protected by the first amendment. Secretary of State v. J. H. Munson Co., 467 U.S. 947, 968, 104 S. Ct. 2839, 81 L. Ed. 2d 786 (1984); Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 798-801, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984); Husti v. Zuckerman Property Enterprises, Ltd., 199 Conn. 575, 587, 508 A.2d 735, appeal dismissed, 479 U.S. 802, 107 S. Ct. 43, 93 L. Ed. 2d 373 (1986). Overbroad statutes, like vague ones, inhibit the exercise of constitutionally protected conduct. Husti v. Zuckerman Property Enterprises, Ltd., supra. A party has standing to raise an overbreadth claim, however, “only if ‘there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court . . . .’ Members of the City Council of Los Angeles v. Taxpayers for Vincent, [supra, 801] . . . .” Id.; see also Broadrick v. Oklahoma, 413 U.S. 601, 613-15, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973). A single impermissible application of a statute, however, will not be sufficient to invalidate the statute on its face; rather, to be invalid, a statute must reach “ ‘a substantial amount of constitutionally protected conduct.’ ” State v. Williams, 205 Conn. 456, 472, 534 A.2d 230 (1987).

In this case, the statute is not unconstitutionally over-broad. The statute is specifically directed at two groups: those who lead or plan disturbances at a correctional institution, and, those who follow in the proscribed activity, whether organized or spontaneous. Section 53a-179b, as construed by our courts, does not reach a substantial amount of constitutionally protected conduct. Therefore, the defendant’s overbreadth claim must fail. Id., 473.

II

The defendant’s final claim is that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that the defendant’s conduct violated § 53a-179b. We do not agree.

“Connecticut courts have consistently employed a two-part analysis in appellate review of the sufficiency of the evidence to sustain a criminal conviction. Whether we review the findings of the trial court or the verdict of a jury, our underlying task is the same.” State v. Johnson, 26 Conn. App. 433, 435, 602 A.2d 36, cert. denied, 221 Conn. 916, 603 A.2d 747 (1992). We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. State v. Owens, 25 Conn. App. 181, 192, 594 A.2d 991, cert. denied, 220 Conn. 910, 597 A.2d 337 (1991). We then decide whether, on the basis of the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991), and cases cited therein.

It is for the court, as the fact finder in this case, to determine the credibility and the effect to be given the testimony. State v. Grant, 177 Conn. 140, 142, 411 A.2d 917 (1979). Moreover, it is the court’s right to consider evidence, draw logical deductions and make reasonable inferences from the facts proven. State v. Schoenbneelt, 171 Conn. 119, 126, 368 A.2d 117 (1976); State v. Ruth, 16 Conn. App. 148, 154, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 552 A.2d 434 (1989). A reviewing court cannot retry the case or pass on the credibility of a witness. State v. Myers, 193 Conn. 457, 473, 479 A.2d 199 (1984); State v. Robinson, 14 Conn. App. 40, 41, 539 A.2d 606, cert. denied, 488 U.S. 899, 109 S. Ct. 244, 102 L. Ed. 2d 233 (1988). This court does “not sit as a [seventh] juror, and [does] not ask whether [it] believe[s] the evidence established guilt beyond a reasonable doubt, but rather, whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Lynch, 21 Conn. App. 386, 400, 574 A.2d 230, cert. denied, 216 Conn. 806, 508 A.2d 63 (1990).

In order for a defendant to be found guilty of rioting at a correctional institution, he must plan or lead the disturbance, or take part in the disturbance at the correctional facility. Our review of the evidence indicates that the court reasonably could have believed Reilly and McDevitt when they testified that the defendant repeatedly failed to obey the orders to clear the yard, and that the defendant was seen marching at the front of the group before the full-fledged riot. Furthermore, the trial court reasonably could have determined that the evidence supported a finding of guilty beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.

       The trial court rendered the guilty verdict orally in open court. Practice Book § 4059 provides in relevant part that “[t]he court shall include in its decision its conclusion as to each claim of law raised by the parties. If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial judge shall order the decision transcribed and the transcript of the decision shall be signed by the trial judge and filed in the trial court within ten days of the filing of the appeal. . . .”
      The trial court did not adhere to this section, and the defendant did not seek to remedy this deficiency pursuant to Practice Book §§ 4051 or 4183. While we do not condone either practice, we will nonetheless review the defendant’s claim in this case because the trial court made adequate findings on the record. See Practice Book § 4187.

       General Statutes § 53a-179b (a) provides: “A person is guilty of rioting at a correctional institution when he incites, instigates, organizes, connives at, causes, aids, abets, assists or takes part in any disorder, disturbance, strike, riot or other organized disobedience to the rules and regulations of such institution.”


text:
    State of Connecticut v. Kendall Hooks
    (10650)
    Lavery, Heiman and Freedman, Js.

      Argued December 10, 1992 —
    decision released February 2, 1993

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and James E. Thomas, senior assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l), conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-59 (a) (l), and assault in the first degree in violation of General Statutes §§ 53a-59 (a) (l) and 53a-8. The defendant was acquitted of a charge of weapons in a motor vehicle in violation of General Statutes § 29-38. On appeal, the defendant claims that (1) the evidence was insufficient to support his conviction of the crime of assault in the first degree because the victim’s injury was not proven beyond a reasonable doubt to have been a serious physical injury, (2) he could not have been convicted of the crime of conspiracy because the evidence disclosed that the act committed was unintended, (3) the trial court improperly refused to charge the jury on the lesser included offenses of criminally negligent homicide and accessory to criminally negligent homicide, (4) the trial court improperly refused to give a jury charge on the evaluation of an accomplice’s testimony, and (5) the trial court’s instructions on circumstantial evidence and inferences violated the defendant’s rights to due process of law and the right to present a defense. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 9, 1990, Hartford police officers were dispatched to the area of Kensington and Hampton Streets in the Stowe Village housing project on a report that a person had been shot. The officers found Corretta Pratt, a fifteen year old female, lying on the pavement, not breathing, and lacking a pulse. A post mortem examination revealed that she had sustained three gunshot wounds. These gunshots, fired from a .38 caliber weapon, injured her heart and liver and were sufficient to have caused her death. The officers also observed a trail of blood and followed it to the rear of 64 Hampton Street. Although they found no victim there, the officers’ subsequent investigation revealed that Chad Adger, who had been shot in the same incident that took Pratt’s life, had been taken to the hospital.

On the evening of the shootings, Ralph Gilliard and several other persons including the two victims were standing at the corner of Kensington and Hampton Streets when they observed a passing Oldsmobile automobile that was occupied by several people wearing black hooded sweatshirts. Several minutes later, the vehicle returned. Shots were fired from the rear passenger side of the car. Pratt was shot several times and died as a result of the gunshots. Adger suffered a graze wound to his face and was shot in the left ring finger leaving it dangling by a thread. The injury to his finger required surgery and resulted in a scar and some loss of function.

Both Gilliard and Adger later identified a vehicle found parked on Enfield Street as the one from which the shots had been fired. Adger based his identification of the car on the fact that the right front hubcap was missing. The vehicle, a two door burgundy Oldsmobile 98, was owned by Anthony Harris. On April 9, 1990, he loaned the car to Larry Jenkins who, in turn, loaned it to Mike Butler.

Prior to the shooting, several members of the “Garden Street Posse,” including the defendant, were standing around on Garden Street talking. They discussed their dissatisfaction with certain actions of some Stowe Village residents. As a retaliatory action for the throwing of a garbage can at the car of one of the member’s grandfather, some of the members of the posse were going to Stowe Village and “shoot it up.” Mike Butler, Derrick Allen, Gregory Butler, two Jamaican youths and the defendant were in the car when it left Garden Street to go to Stowe Village. In their possession they had two .38 caliber weapons as well as a .32 caliber weapon and a sawed-off shotgun. The defendant had possession and control of one of the .38 caliber weapons. Pratt was killed by a .38 caliber bullet.

On the day following the incident, the defendant stated that he hoped that the guns had been thrown away. He also stated to Keith Wilson that he had been trying to shoot “Sammy,” but that he had missed. He also told Wilson that if the police became aware of his involvement “he would have to do time.”

The defendant gave four separate and somewhat conflicting statements to the police. In his statement of May 1, 1990, he stated that his friends were angry about an incident that had occurred at Stowe Village but disclaimed any involvement in the shootings. He claimed that he had left to visit his girl friend. On October 4, 1990, he was again interviewed by the police. In that interview he stated that his statement of May 1,1990, was not truthful. He admitted that he had been in the ear when the shots were fired but that neither he nor Allen had fired any weapons. He claimed that “Jamaica Mickey” had fired the shots. On October 9, 1990, the defendant was again interviewed by the police. On this occasion, he named all of the people who had been in the car on the day of the incident, and again claimed that “Jamaica Mickey” had opened fire into a crowd of people. In the same interview, he also stated that they had gone to Stowe Village to find some people with whom they had been fighting for the purpose of engaging in a fistfight, but that “Jamaica Mickey” and another person were armed. Finally, on October 18, 1990, the defendant stated that both “Jamaica Mickey” and Mike Butler had guns, but that he was only sure that “Jamaica Mickey” had fired. He was not able to tell whether Butler had fired.

I

The defendant first claims that the evidence produced at trial was insufficient for the jury to find that the defendant, with intent to cause serious physical injury to another person, caused such injury by means of a deadly weapon or a dangerous instrument. General Statutes § 53a-59 (a) (1). The defendant posits that the evidence is deficient in several respects. First, he claims that the victim was, at the time of trial, pain free from the finger injury. Second, he asserts that after undergoing physical therapy, the victim reinjured his finger while playing basketball. While he concedes that the evidence demonstrated that the victim does not have full use of his left hand ring finger because it does not bend, and because it cannot be straightened from a forty-five degree angle, he asserts that the evidence does not support a conclusion that this disability resulted from the shooting injury but could have been caused by the subsequent basketball injury. The basis upon which he makes this claim is his assertion that the victim testified only that the appearance of the finger at the time of trial was the same as when he left the hospital. The defendant interprets that to limit the evidence to a scar half the size of a dime a half inch below the knuckle as the only sequelae from this shooting. We do not agree and conclude that the evidence was sufficient to support the jury finding.

Our review of the evidence reveals that Adger testified that his left ring finger had been shot and was hanging off, attached only by some bone and skin. Additionally, he testified that prior to the incident, his left ring finger appeared the same as did the right ring finger, and he displayed both his left and right ring fingers to the jury. The evidence also revealed that he was unable to straighten completely or bend his left ring finger. It was bent from the middle knuckle at approximately a forty-five degree angle. Adger also testified that he had reinjured his left ring finger playing basketball, but that the left ring finger still looked the same as it had looked after his discharge from the hospital and before it was injured in the basketball game.

To determine whether the evidence was sufficient to justify a conviction, we first construe the evidence in the light most favorable to sustaining the verdict. State v. Cruz, 28 Conn. App. 575, 578, 611 A.2d 457 (1992). We then determine whether, “from that evidence and all the reasonable inferences which it yields, a [trier of fact] could reasonably have concluded that the defendant was guilty beyond a reasonable doubt.” State v. Uribe, 14 Conn. App. 388, 393, 540 A.2d 1081 (1988). “In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ...” (Citations omitted; internal quotation marks omitted.) State v. Somerville, 214 Conn. 378, 390, 572 A.2d 944 (1990); State v. Maxwell, 29 Conn. App. 704, 708, 618 A.2d 43 (1992). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” (Internal quotation marks omitted.) State v. Maxwell, supra.

It is the sole province of the jury as the trier of fact to draw reasonable and logical inferences from the facts that they find. State v. Gray, 221 Conn. 713, 721, 607 A.2d 391, cert. denied, U.S. , 113 S. Ct. 207, 121 L. Ed. 2d 148 (1992). It is also the jury’s exclusive province to weigh the conflicting evidence and determine the credibility of the witnesses. State v. Pinnock, 220 Conn. 765, 778, 601 A.2d 521 (1992); State v. Lago, 28 Conn. App. 9, 31, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992).

The test for determining whether the evidence is sufficient to sustain a verdict is thus “whether the [trier] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt . . . .” (Citations omitted; internal quotation marks omitted.) State v. Haddad, 189 Conn. 383, 387-88, 456 A.2d 316 (1983); State v. Cruz, supra, 578-79.

To have found the defendant guilty of assault in the first degree in violation of General Statutes § 53a-59 (a) (1), the jury would be required to find beyond a reasonable doubt that the defendant, with the intent to cause a serious physical injury to another person, caused such injury by means of a deadly weapon or dangerous instrument. A serious physical injury is statutorily defined as a “physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.” General Statutes § 53a-3 (4).

“The degree of the injuries suffered by [the victim] was a proper question for the jury to decide if sufficient evidence were introduced. . . . While the distinction between serious physical injury and physical injury is elusive; [t]he determination as to whether the victim’s injuries were serious physical injuries was properly a question for the jury. ...” (Citations omitted; internal quotation marks omitted.) State v. Woodward, 11 Conn. App. 499, 503-504, 528 A.2d 404, cert. denied, 205 Conn. 802, 531 A.2d 940 (1987).

The jury had before it evidence that as a result of a gunshot the victim’s left ring finger was hanging off, that he was admitted to a hospital and underwent surgery for the repair of the injured finger, that he was hospitalized for a four day period, and that he underwent an extensive course of physical therapy that lasted about two months after his discharge from the hospital. The jury also had before it evidence that when the victim was discharged from the hospital, he did not have full use of his left ring finger and that a year after his injury the victim still lacked the full use of the finger in that he was unable to bend the finger or straighten it out completely. Further, the jury had before it evidence that the finger was bent at an angle of approximately forty-five degrees and that there was a small scar on the left ring finger. We conclude that the evidence presented was sufficient to support a finding that the victim’s injury was a serious physical injury. See State v. Allen, 28 Conn. App. 81, 89-90, 611 A.2d 886, cert. denied, 223 Conn. 920, 614 A.2d 826 (1992); State v. Dickson, 10 Conn. App. 462, 465, 523 A.2d 935 (1987).

The defendant’s claim that the evidence against him was insufficient on the issue of the existence of a serious physical injury suffered by the victim is thus without merit.

II

The defendant next claims that he was improperly convicted of the crime of conspiracy to commit assault in the first degree because there was no evidence from which a jury could find that the defendant intended that Adger be seriously injured. The defendant posits that his conviction on the count charging him with conspiracy resulted in his having been found guilty of having accomplished an accidental or unintended result. We are not persuaded.

We first turn to an examination of the nature of the crime of conspiracy. Conspiracy has long been recognized as an offense separate and distinct from the commission of the substantive offense. In re Luis R., 204 Conn. 630, 637, 528 A.2d 1146 (1987). “The commission of the substantive offense and a conspiracy to commit it are separate and distinct crimes. . . . The crime of conspiracy is dependent on clear principles, and has characteristics and ingredients which separate it from all other crimes.” (Citations omitted; internal quotation marks omitted.) Id.

To prove the crime of conspiracy, in violation of § 53a-48, the state must establish beyond a reasonable doubt that an agreement existed between two or more persons to engage in conduct constituting a crime and that subsequent to the agreement one of the conspirators performed an overt act in furtherance of the conspiracy. State v. Rouleau, 204 Conn. 240, 258, 528 A.2d 343 (1987); State v. Estrada, 28 Conn. App. 416, 420, 612 A.2d 110, cert. denied, 223 Conn. 925, 614 A.2d 828 (1992). The state is also obligated to prove that the accused intended the conduct constituting a crime be performed. State v. Rouleau, supra; State v. Channer, 28 Conn. 161, 168, 612 A.2d 95, cert. denied, 223 Conn. 921, 614 A.2d 826 (1992). “The gravamen of the crime of conspiracy is the unlawful combination and an act done in pursuance thereof, not the accomplishment of the objective of the conspiracy.” (Internal quotation marks omitted.) State v. Rouleau, supra. “Conspiracy is an inchoate offense the essence of which is an agreement to commit an unlawful act. . . . The prohibition of conspiracy is directed not at the unlawful object, but at the process of agreeing to pursue that object. . . . Conspiracy is an anticipatorial offense distinguished by a corrupt agreement by two or more persons to commit a specific objective crime.” (Citations omitted; internal quotation marks omitted.) State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986).

Here, the object of the conspiracy was to commit assault in the first degree. The jury had before it sufficient evidence to support that finding. In furtherance of the conspiracy, the conspirators armed themselves with weapons and went to Stowe Village for the purpose of carrying out the object of the conspiracy. The jury properly could find that these actions constituted an overt act in pursuance of the conspiracy. Thus, the crime of conspiracy was completed when the defendant and others ventured into Stowe Village with weapons for the purpose of carrying out the crime. To commit the crime of conspiracy, the defendant did not need to successfully carry out the objective of the conspiracy. State v. Ghere, 201 Conn. 289, 300, 513 A.2d 1226 (1986).

The defendant’s reliance on the fact that he was convicted of accessorial liability on the charge of assault in the first degree is unavailing. “[T]he accessory statute merely provides alternate means by which a substantive crime may be committed.” (Internal quotation marks omitted.) In re Luis R., supra; State v. Gamble, 27 Conn. App. 1, 9, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992). It has long been established in Connecticut that no crime of being an accessory exists. In re Luis R., supra. Here, the jury clearly was convinced that the defendant intentionally aided another person in committing an assault in the first degree. The evidence clearly supported such a conclusion and the defendant was not convicted of a conspiracy to bring about an unintended result but was properly convicted of the crime of conspiracy to commit assault in the first degree. The defendant’s claim to the contrary is without merit.

Ill

The defendant next asserts that the trial court improperly refused to grant his request that it charge the jury on the crime of criminally negligent homicide; General Statutes § 53a-58; as a lesser included offense of the crime of manslaughter in the first degree and his further request that the court charge on accessorial liability as án alternate method of committing that crime. We disagree.

To establish entitlement to charge on a claimed lesser included offense* the defendant must meet the four requirements established by our Supreme Court that, “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). Thus, failure of the defendant to meet all four requirements results in a lack of entitlement to a lesser included offense charge. Id.; State v. Ray, 30 Conn. App. 95, 100, 619 A.2d 469 (1993).

The request filed by the defendant clearly fails to satisfy the first requirement of State v. Whistnant, supra, because it does not meet the appropriate instruction test. Practice Book § 854 sets forth the requirements for an appropriate request to charge. Each request to charge shall contain “a single proposition of law clearly and concisely stated with the citation of authority upon which it is based, and the evidence to which the proposition would apply.” (Emphasis added.) Practice Book § 8/54. Here, the request to charge was rendered inappropriate by the failure of the defendant to meet the bare minimum standard set forth in Practice Book § 854. The request did not set forth a clear and concise proposition of law, nor did the defendant supply to the court the requisite factual predicate necessary to support his request. State v. Whistnant, supra.

Since the defendant cannot meet the first prong of Whistnant, his claim that the trial court improperly failed to comply with his request to charge is without merit.

IV

The defendant next asserts that the trial court improperly failed to comply with his request that the charge include the issue of the special considerations applicable to accomplice testimony. We disagree.

The trial court has the duty to “instruct the jury to scrutinize carefully the testimony of an accomplice of the defendant when the evidence so warrants.” State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992); State v. Shindell, 195 Conn. 128, 142, 486 A.2d 637 (1985). The court’s duty to so charge is implicated only where the trial court has before it sufficient evidence to make a determination that there is evidence that the witness was in fact an accomplice. See State v. Smith, 16 Conn. App. 223, 227-28, 547 A.2d 102 (1988).

“An accomplice is one who, acting with the mental state required for the commission of an offense, solicits, requests, commands, importunes or intentionally aids another person to engage in conduct that constitutes an offense. General Statutes § 53a-8. In addition to criminal intent, an accomplice must also possess community of unlawful purpose or ‘a sort of partnership in purpose and conduct.’ ” State v. Polanco, 26 Conn. App. 33, 43, 597 A.2d 830, cert. denied, 220 Conn. 926, 598 A.2d 367 (1991).

Our review of the evidence discloses that the trial court had nothing before it to support a factual finding that the witness, Lindsay, had acted as an accomplice or that he had any involvement in the commission of the crimes with which the defendant stood charged. See id. The evidence viewed in the light most favorable to the defendant; State v. Fuller, 199 Conn. 273, 275, 506 A.2d 556 (1986); does not support a conclusion that the defendant was entitled to an accomplice testimony charge. While he testified that he was a member of the Garden Street posse and that he had been hanging around on Garden Street on the day of the shooting, no evidence demonstrated that he participated in the preparation for, or the execution of the defendant’s crimes. There was evidence that Lindsay had used the Oldsmobile to go home and change his clothes. The evidence also indicates that he returned the car to Garden Street and gave the keys to Mike Butler, who, along with the defendant and others then left Garden Street in the car. Lindsay did not accompany them. No evidence connected Lindsay with the preparation of the weapons or any knowledge of the guns. In short, the evidence did not support the defendant’s claim that Lindsay was an accomplice.

Absent evidence sufficient to offer support for the theory that Lindsay was an accomplice, the defendant was not entitled to the charge that he sought. On the evidence before it, the trial court properly declined to give an accomplice testimony charge. See State v. Boles, supra, 551-52.

V

The defendant next claims that the trial court’s instructions regarding the drawing of inferences from circumstantial evidence violated his right to due process and his right to present a defense. He asserts that the trial court should have sua sponte discriminated between inferences favorable to the state and those favorable to the defendant. In short, he proposes that the trial court instruct on two separate standards regarding the use of inferences. We decline this invitation to further complicate this standard to the detriment of defendants.

The defendant concedes that he did not properly preserve this claim for review, and thus seeks review under the aegis of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). To prevail on appeal on a claim of constitutional error that has not been properly preserved at trial, the defendant must meet all of the following conditions: “(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.” Id., 239-40; State v. Ray, supra, 105. “We are free, however, to dispose of the claim by focusing on the condition that appears most relevant under the circumstances of the case.” State v. Andrews, 29 Conn. App. 533, 537, 616 A.2d 1148 (1992). We conclude that the defendant cannot satisfy the fourth prong of Golding, namely, that when the alleged constitutional violation is subjected to a harmless error analysis, the state is unable to demonstrate harmlessness beyond a reasonable doubt. State v. Willis, 24 Conn. App. 678, 682, 591 A.2d 445 (1991), aff’d, 221 Conn. 518, 605 A.2d 1359 (1992).

This same claim has been previously advanced and rejected in a number of cases. See, e.g., State v. Jackson, 28 Conn. App. 721, 613 A.2d 846 (1992); State v. Tinsley, 24 Conn. App. 685, 591 A.2d 448, cert. denied, 220 Conn. 902, 593 A.2d 968 (1991); State v. Willis, supra. Here, the defendant offered no affirmative defense. The issues before the jury were fact bound, involving the credibility of witnesses and the identification of the defendant as one of the participants in the commission of the crimes. The trial court properly charged the jury on the presumption of innocence afforded to the defendant and the state’s burden to prove each element of the crime beyond a reasonable doubt. Further, the fact that the defendant bore no burden of proof in any regard was clearly explained to the jury. Our courts have held that an instruction, similar to the one now contested by this defendant, risks confusing the jury to the detriment of the defendant and lessening the burden of proof that the law casts upon the state. State v. Ortiz, 217 Conn. 648, 668-69, 588 A.2d 127 (1991); State v. Rivera, 24 Conn. App. 670, 676, 591 A.2d 440, cert. denied, 219 Conn. 914, 593 A.2d 139 (1991).

We conclude that the defendant has failed to satisfy the fourth prong of Golding, and therefore decline review of this claim.

The defendant also attacks the trial court’s charge that each fact leading to the drawing of an inference had to be proven beyond a reasonable doubt. The defendant claims that the trial court’s use of the phrase, “each fact” necessarily implicated all facts upon which the defendant relied and that the charge was thereby rendered defective. We are not persuaded.

We have already set forth our review of the charge insofar as it relates to the burden of proof and the presumption of innocence. While we note that the trial court’s charge that each fact leading to an inference must be proven beyond a reasonable doubt was incorrect; State v. Tinsley, supra, 689; State v. Rivera, supra, 677; the charge as given benefited the defendant by increasing the state’s burden to require it to prove each fact beyond a reasonable doubt before an inference could be drawn. Our review convinces us that the error was harmless beyond a reasonable doubt. State v. McDonough, 205 Conn. 352, 355-56, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108 S. Ct. 1079, 99 L. Ed. 2d 238 (1988). Thus, the defendant’s claim fails to satisfy the fourth prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

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

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

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

       See footnote 3, supra.

       General Statutes § 53a-8 provides in pertinent part: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Additional facts will be set forth where they are relevant to each issue.

       The defendant’s request to charge with respect to criminally negligent homicide provides: “1. Defendant respectfully requests that the offense of Criminally Negligent Homicide C.G.S. § 53a-58 and Accessory to Criminally Negligent Homicide, under C.G.S. § 53a-8 and C.G.S. § 53a-58, be charged as lesser included offenses of Count One of the Information. State v. Whistnant, 179 Conn. 576, [427 A.2d 414] (1980).”

       The defendant’s request to charge on the issue of the testimony of accomplices is as follows: “6. Certain of the witnesses by their own testimony participated in the criminal conduct charged by the state in this case. They are what the law calls accomplices. In weighing the testimony of an accomplice, who is a self-confessed criminal, you must consider that fact. All else being equal, it may be that you would not believe a person who. has committed a crime such as this, involving moral wrong, as readily as you would believe a person of good character. The amount of moral wrong involved in the participation of the witness in the crime should be weighed. Also, in weighing the testimony of an accomplice who has not yet been sentenced or whose case has not yet been disposed of, or who has not been charged with offenses of which the state has evidence, you should keep in mind that he may, in his own mind, be looking or hoping for some favorable treatment in the sentence or disposition of his o[w]n case, and that, therefore, he may have an interest in the outcome of this case that his testimony may have been colored by that fact. Therefore, the jury must look with particular care at the testimony of an accomplice and scrutinize it very carefully before you accept it. Connecticut Practice, Borden & Orland § 3.9.”