author: DUPONT, J.

text:
    MARY COOKS v. O’BRIEN PROPERTIES, INC.
    (AC 16581)
    O’Connell, C. J., and Sullivan and Dupont, Js.
    Argued January 21
    officially released April 7, 1998

      Ralph G. Eddy, for the appellant (defendant).

      Vincent F. Sabatini, with whom, on the brief, was Tara K. Lyons, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendant appeals from the judgment, rendered after a jury trial, in favor of the plaintiff for injuries incurred as a result of a fall on the defendant’s property. The defendant claims that the trial court improperly (1) refused to deliver a requested jury charge, (2) charged the jury that there was sufficient evidence on which to find that an accumulation of snow or ice from a previous storm could have been a proximate cause of the plaintiffs fall, (3) refused to submit to the jury the special defense of contributory negligence, (4) granted the plaintiffs motion in limine redacting certain portions of the plaintiffs medical record and a videotaped deposition of the plaintiffs physician, (5) permitted the plaintiff to testily that the photographs of the stairs on which the plaintiff fell were taken almost five hours after the accident occurred, (6) permitted certain questions and responses from a transcript of a deposition to be read to the jury, and (7) admitted into evidence as full exhibits two typewritten statements. We affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. At the time of the incident that is the subject of this appeal, the plaintiff had been a resident of the defendant’s property in Hartford for nineteen years. The defendant’s property is an eighteen unit building with a rear parking lot. There were two means of egress from the apartment building, each with steps from the building to the ground level—the front entrance, where the accident occurred, and the back entrance, which has a walkway to the rear parking lot. The parking lot was connected to the public street by a driveway at the front entrance of the building.

On January 6, 1994, a winter storm, Storm Frank, arrived in the Hartford area. The storm, which was tracked by several different weather reporting organizations, including the New England Weather Service, continued to deposit snow and ice in the Hartford area until the early morning of January 8, 1994. That storm was preceded by another winter storm, Storm Emma, which had deposited approximately three to four inches of snow and ice in the Hartford area on January 3 and 4, 1994.

On Saturday, January 8, 1994, at 9 a.m., the plaintiff had plans to go to a supermarket with her friend, Brenda Minter. As of 9 a.m., Jeffrey Sheeley, the superintendent of the apartment building, had not yet begun to clear the snow from the walks or the steps of the building. The driveway, however, had been plowed by a company hired by the defendant.

Just before 9 a.m., the plaintiff left her apartment and walked to the front exit of the building. The plaintiff could see that the steps were covered with snow. She testified that she went back into the building at that point and knocked on Sheeley’s door, intending to ask him for assistance in getting down the steps. Getting no response, she attempted to descend the steps herself. She was very careful in her descent of the snow-covered steps, holding on to the railing and stepping into footprints in the deep snow on the steps. The plaintiff walked down the first flight of steps safely, but fell down the second flight, striking her left knee and left hand on the way down.

Another resident, Anonio Schand, heard the fall and came to the plaintiffs assistance. Schand helped the plaintiff up and she continued to the curb, where Minter picked her up soon after and took her to the store. The plaintiff subsequently sought medical treatment for her injuries. After a five day trial, the jury rendered a verdict in favor of the plaintiff in the total amount of $ 64,494.90. The court applied collateral source payments and medical insurance payments, added interest and costs and rendered a final judgment in the amount of $ 76,599.93.

I

The defendant first claims that the trial court improperly refused to charge the jury in accordance with Kraus v. Newton, 211 Conn. 191, 197-98, 558 A.2d 240 (1989), as stated in the defendant’s request to charge. Instead of delivering the requested charge, the court delivered an alternative jury charge with respect to this issue.

“It is the law of this state that a request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given. . . . It is, however, also the law of this state that a refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” (Internal quotation marks omitted.) State v. Cooper, 182 Conn. 207, 211, 438 A.2d 418 (1980). A trial court’s instructions to the jury will be considered proper “so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury.” (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 584, 606 A.2d 693 (1992).

The defendant relied on Kraus v. Newton, supra, 211 Conn. 197-98, for its request to charge. Kraus held that “in the absence of unusual circumstances, a property owner, in fulfilling the duty owed to invitees upon his property to exercise reasonable diligence in removing dangerous accumulations of snow and ice, may await the end of a storm and a reasonable time thereafter before removing ice and snow from outside walks and steps.” Id., 197-98. The defendant’s requested charge included the following language: “If you find that the plaintiff fell during an ongoing storm of freezing rain, sleet and/or snow, and that the ice or snow caused the fall, then you must find for the defendant.” (Emphasis added.)

The defendant’s requested charge does not state correctly the holding of Kraus. Under the rule of Kraus, a landlord may await a reasonable time after the end of a storm to clear snow and ice only “in the absence of unusual circumstances.” Id., 197. The trial court’s jury charge, on the other hand, accurately presented the law of Kraus, including the unusual circumstances exception to the general rule. The court properly instructed the jury to determine (1) whether the storm had ended and a reasonable time thereafter had passed, and (2) if a reasonable time had not passed since the end of the storm, whether unusual circumstances existed so as to have required the defendant to remove the snow and ice from the stairway prior to the end of the storm.

With respect to the first determination the jury was instructed to make, the trial court properly placed on the jury the responsibility of determining whether the storm had in fact ended at the time of the plaintiffs fall. Our Supreme Court’s decision in Kraus “does not foreclose submission to the jury, on a proper eviden-tiary foundation, of the factual determinations of whether a storm has ended . . . .” Id., 198. The evidence presented by the plaintiffs witnesses, meteorologist Furey and two fact witnesses, was that the snow had stopped falling between 1 and 2 a.m. on January 8, 1994, and that any further precipitation was so light that it would not result in any further accumulation on the ground. The jury reasonably could have determined that the storm had in fact stopped and a reasonable time had passed prior to the plaintiffs fall at 9 a.m.

With respect to the second determination that the jury was instructed to make, consistent with the rule of Kraus, the court properly allowed the jury to consider whether any unusual circumstances existed that would impose on the defendant the duty to remove the snow and ice from the steps on which the plaintiff fell prior to the cessation of the storm. The court proceeded to instruct the jury on several considerations that may constitute unusual circumstances. First, the court instructed the jury that it could consider whether the front steps on which the plaintiff fell were the only practical means of entry and exit from the building on the morning of the accident. Second, the court instructed the jury that it could consider whether all perceptible accumulation of snow had ceased well before 9 a.m., even if some light precipitation continued.

The only Connecticut case of which we are aware in which an appellate court considered the meaning of the term “unusual circumstances” as it was used in Kraus is Sinert v. Olympia & York Development Co., 38 Conn. App. 844, 847-50, 664 A.2d 791, cert. denied, 235 Conn. 927, 667 A.2d 553 (1995). In Sinert, this court held that the trial court gave an improper instruction in its definition of the unusual circumstances exception of Kraus because it instructed the jury to consider whether, at the time of the plaintiffs fall on the defendant’s property, there was a storm in progress making it impractical for the defendant to clear the sidewalk, “ ‘keeping in mind those circumstances which [the trial court] referred to earlier, that is the location of the premises, the use of the premises, the day of the week and the time of day.’ ” (Emphasis added.) Id., 848.

While acknowledging “that according to Kraus, if unusual circumstances exist, a landowner may have a duty to remove accumulations of ice and snow from walks and steps before the end of a storm,” we concluded in Sinert that “the circumstances that existed in this case do not qualify as unusual.” Id. In so holding, we concluded that the court’s instruction was “improper because it takes into consideration the status of the defendants as owners and maintainers of a commercial building in determining the duty owed to a plaintiff. ... A landowner’s duty of care with respect to others has always been determined on the status of the entrant . . . .” (Citations omitted.) Id., 849. We determined that the trial court’s instruction regarding whether unusual circumstances existed “would result in a heightened duty of care for some landowners as opposed to others”; id.; and, accordingly, we concluded that the factors enunciated by the trial court were “not appropriate considerations [in determining whether unusual circumstances existed] for a jury with respect to this issue. . . . Unusual circumstances, therefore, do not include those factors that define the status of the defendant.” Id., 849-50.

Sinert, therefore, stands for the limited proposition that the defendant’s status as a commercial property owner does not constitute an unusual circumstance within the decisional parameters of Kraus.

In the present case, the trial court’s instruction to the jury did not state that the jury could find unusual circumstances based on the status of the defendant as a residential property owner. Instead, the court enumerated factors that related to the conditions that the plaintiff confronted on the day of the accident. Furthermore, the court clearly instructed the jury that absent a finding of unusual circumstances, a property owner may wait a reasonable time after the end of a storm to remove snow and ice from steps and walkways. The trial court, therefore, properly refused to deliver the defendant’s requested instruction, as that instruction did not correctly reflect the law of Kraus. Instead, the trial court properly instructed the jury on the law of Kraus, including the unusual circumstances exception that would permit the jury to consider the evidence presented with respect to the changeover in precipitation and the availability of alternative means of egress from the defendant’s property in determining whether such unusual circumstances existed on the day of the plaintiffs accident so as to impose on the defendant the duty to remove the snow and ice from the steps prior to 9 a.m.

II

The defendant next claims that the trial court improperly instructed the jury that there was sufficient evidence on which the jury could find that an accumulation of snow or ice from a prior storm could have been the proximate cause of the plaintiffs fall. The rule in Kraus “does not foreclose submission to the jury, on a proper evidentiary foundation, of the factual determinations of . . . whether a plaintiffs injury has resulted from new ice or old ice [and] when the effects of separate storms begin to converge.” Kraus v. Newton, supra, 211 Conn. 198. While conceding this rule of law, the defendant asserts that there was no proper evidentiary foundation on which the jury reasonably could have concluded that the plaintiffs fall was a result of an accumulation of ice or snow from a prior storm. We disagree.

The plaintiff presented uncontroverted evidence that on January 3 and 4, 1994, Storm Emma deposited approximately three to four inches of snow and ice in the Hartford area. The plaintiff further presented evidence that between the end of Storm Emma and the end of Storm Frank on January 8,1994, the temperature in Hartford remained below freezing except for January 5, 1994, when the temperature reached thirty-three degrees and some slight melting occurred. The plaintiffs expert witness, meteorologist Furey, testified that left uncleared, some precipitation from Storm Emma would have remained on the ground on January 8,1994. Specifically, Furey testified that precipitation from Storm Emma would have remained on a concrete surface such as the stairs on which the plaintiff fell. Similarly, Schand testified that the steps had been covered with layers of snow and ice prior to Storm Frank. Finally, the plaintiff testified that she attempted to descend the stairs by walking in footsteps left in the snow by tenants who had exited prior to her. The jury reasonably could have found, therefore, that the underlying ice and snow left on the steps from Storm Emma may have been exposed by the footprints left in the snow of Storm Frank by tenants who had descended the stairs prior to the plaintiff, and that the accumulated snow and ice was a proximate cause of the plaintiffs injuries.

Ill

The defendant’s remaining five claims all concern challenges to the court’s rulings on evidentiary matters. “ ‘The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.’ ” State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness. . . . We will reverse the trial court’s ruling only if it could not reasonably conclude as it did.” (Internal quotation marks omitted.) Eisenbach v. Downey, 45 Conn. App. 165, 179, 694 A.2d 1376, cert. denied, 241 Conn. 926, 696 A.2d 1264 (1997).

A

The defendant’s first claim of evidentiary error involves the trial court’s refusal to submit to the jury the defendant’s amended special defense of September 20, 1996, refusal to charge the jury on the issue of contributory negligence raised by the special defense, and refusal to submit to the jury a verdict form that would have permitted the jury to attribute to the plaintiff a percentage of contributory negligence. The following additional facts are necessary for a proper resolution of this claim.

On September 6, 1994, the defendant filed its answer and special defenses in response to the plaintiffs complaint. By way of special defense, the defendant asserted that the plaintiffs contributory negligence was a substantial factor in producing her accident in that she (1) “failed to watch where she was stepping,” (2) “failed to make reasonable use of her own senses and faculties,” (3) “failed to step over, away from or around whatever defective or dangerous condition existed,” and (4) “failed to use that degree of care that an ordinarily prudent person would have exercised for her own safety while using the premises under the circumstances and conditions then present.” By way of reply on September 9, 1994, the plaintiff denied each and every material allegation of the defendant’s special defense.

An articulation of the trial court dated January 28, 1997, which is part of the record in this case, outlined a conversation that took place off the record on September 19,1996, at a charging conference attended by both parties. According to the articulation, after some discussion, the court asked the defendant whether its special defense of contributory negligence was still in the case and was told, in response, that the defendant would withdraw it.

On the following day, September 20, 1996, defense counsel filed an amended answer and special defense in which he no longer asserted two specifications of his special defense, but repleaded his other two specifications of the plaintiffs negligence. The court refused to accept the defendant’s pleading and did not charge on the special defense because the evidence was insufficient to support the special defense. The defendant excepted to the court’s decision.

The defendant claims that the trial court improperly refused to charge the jury on the issue of contributory negligence, and that the verdict form should have allowed the jury to assign to the plaintiff a portion of the negligence. We conclude that the trial court properly determined that the defendant had presented insufficient evidence to support a jury charge on the issue of contributory negligence.

“Jury instructions should be confined to matters in issue by virtue of the pleadings and evidence in the case. ... It is error to submit a specification of negligence to the jury in respect to which no evidence has been offered.” (Citation omitted.) Mack v. Perzanowski, 172 Conn. 310, 313, 374 A.2d 236 (1977); see Faulkner v. Reid, 176 Conn. 280, 281, 407 A.2d 958 (1978) (improper to submit to jury issue of contributory negligence where no evidentiary foundation established). We have reviewed the transcript in this case and cannot find any evidence from which a jury could conclude reasonably that the plaintiff was contributorily negligent. The trial court in this case properly determined that there was insufficient evidence to support a finding that the plaintiff was contributorily negligent and, accordingly, it properly refused to submit this issue to the jury.

B

The defendant next claims that the trial court improperly granted the plaintiffs motion in limine ordering certain language redacted from her medical record and from the transcript of the videotaped deposition of her doctor. Following her fall, the plaintiff sought treatment from Thomas Stevens, an orthopedic surgeon. During her first visit to Stevens’ office, a patient history was taken and was subsequently recorded. The relevant portion of the history states: “She fell several weeks ago during a heavy snowstorm.” The same language appears in Stevens’ videotaped deposition. Pursuant to the plaintiffs September 17, 1996 motion in limine, the court ordered that the words “during a heavy snowstorm” be redacted from both the medical report and the transcript of the deposition because it was not germane to treatment or diagnosis. The defendant objected, arguing that the statement constituted an admission of a party opponent.

“ [S]ince the business of a hospital is treating patients, information that is not relevant to the medical treatment of the patient is inadmissible . . . [and] is subject to redaction by the trial court.” (Citations omitted.) Aspiazu v. Orgera, 205 Conn. 623, 627-28, 535 A.2d 338 (1987). In Kelly v. Sheehan, 158 Conn. 281, 285, 259 A.2d 605 (1969), our Supreme Court addressed the issue of whether a statement in a hospital record that was otherwise inadmissible as unrelated to diagnosis or treatment was admissible as a party admission. In Kelly, the court held that the statement, which in that case concerned the identity of the driver of the car during the subject accident, was not admissible as an admission because the record did not clearly reflect that the plaintiff had made the statement. Id., 286. Similarly, in the present case, while there is some evidence that the plaintiff made a statement to Stevens similar to the redacted statement, the trial court properly could have determined that there was no evidence that the plaintiff actually made the statement that was transcribed in the medical history. This ruling was one that rested in the discretion of the trial court and, under these facts, we cannot find that the trial court abused its discretion.

C

The defendant next claims that the trial court improperly permitted the plaintiff to testify that the photographs of the stairs on which the plaintiff fell, which were admitted as full exhibits, were taken at approximately 2 p.m. on the day of the accident, nearly five hours after the accident occurred. The defendant does not dispute that the photographs were taken almost five hours after the plaintiffs fall. Nor does the defendant dispute that the photographs were a fair and accurate representation of the condition of the steps at the time of the plaintiffs accident. The defendant claims, however, that the testimony regarding the condition of the steps nearly five hours after the accident was not only irrelevant, but was highly prejudicial in that it allowed the plaintiff to imply that, even if the defendant were permitted a reasonable time after the end of the storm to clear the steps, it would not have done so.

“The balancing of the probative value of evidence against its prejudicial effect has been left to the sound discretion of the trial courts. State v. Tucker, 181 Conn. 406, 416, 435 A.2d 986 (1980). This determination will be disturbed only where there is a clear abuse of discretion or where manifest injustice has been done. Id.; State v. Alford, 37 Conn. App. 180, 186, 655 A.2d 782, cert. denied, 234 Conn. 914, 660 A.2d 357 (1995).” State v. Sinchak, 47 Conn. App. 134, 144-45, 703 A.2d 790 (1997), cert. granted on other grounds, 243 Conn. 964, 707 A.2d 1266 (1998). The trial court did not abuse its discretion in making its determination of admissibility.

D

The defendant next claims that the trial court improperly permitted several sets of questions and responses from the deposition of Schand to be read to the jury. Pursuant to Practice Book § 248 (2), now Practice Book (1998 Rev.) § 13-31 (b), “objection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.” However, “those objections that might be obviated if presented at the time of taking the deposition are waived if not made at that time. . . . Thus, unless reserved by agreement, objections as to form (leading questions, opinion, or unresponsive answers) . . . are generally waived if they could have been cured by prompt presentment.” (Citations omitted.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 3.5.7 (b), p. 58.

The first portion of Schand’s deposition testimony to which the defendant objected contained the following questions and answers:

“Q. Now, you have mentioned you remember it snowing the day before. Were the steps cleaned the day before at all?
“A. No. At—I think it was two or three days. I remember they would not deliver the mail because of the steps. Specifically because of the steps.
“Q. Specifically because of the steps?
“A. There was too much snow on it. The mailman would not deliver the mail.”

The defendant objected to the admission of this testimony on the grounds that it was unresponsive and that it was based on hearsay. The trial court properly overruled the objections, holding that the defendant’s objection as to form should have been raised at the deposition and that the statement did not call for an out-of-court statement and therefore was not hearsay.

The second portion of Schand’s deposition testimony to which the defendant objected contained the following questions and answers:

“Q. Are you familiar [with] how any cleanups proceeded during that winter?
“A. Yes, I am.
“Q. Could you describe them?
“A. Okay. Occasionally they would hire private contractors to come in their pickup truck with plows on it. . . . And they’d plow out the back, plowed down the hill, because it was a very steep hill. . . .
“Q. You are talking about a driveway now?
“A. Yeah. The parking lot and the driveway going down into the street which is a very steep hill. Occasionally, a couple of times I’d seen that. I can count on my fingers, matter of fact, two times I seen Jeff Sheeley shovel around the whole building.”

The defendant objected to this testimony on the ground that it was irrelevant because it did not concern the steps on which the plaintiff fell. The trial court, however, admitted this evidence under the theory that it was relevant to the on-site superintendent’s habit or business custom regarding storm cleanups.

“The practice of doing certain things in a certain way in the regular course of business is admissible to prove such course of conduct was followed on a particular occasion.” C. Tait & J. LaPlante, supra, § 8.6.3, p. 253. Furthermore, “[a] person’s habit on past occasions is relevant as to his conduct on a similar occasion.” Id., § 8.6.2. Schand’s testimony clearly indicated that he had knowledge of the snow removal practices at the defendant’s building. Accordingly, the trial court properly concluded that the challenged testimony was admissible both as evidence of a business custom and as evidence of habit.

The third portion of Schand’s deposition testimony that the defendant claims should have been excluded by the trial court involved the following questions and answers:

“Q. How would you—if you had to evaluate the cleanup of the snow at this building, how would you evaluate it?
“A. I think O’Brien Properties should make their superintendent more—I think he should get out and really pay attention to when it starts. Especially when it stops and go out there and sand, shovel or whatever. If he felt it too big of a job for him to call O’Brien Properties and have them send somebody especially if they feel it’s going to stop for say more than five or six hours or whatever. Have somebody come out there and clear it away.
“Q. And you testified that on some occasions you felt they didn’t get out there and clean up soon enough, is that right?
“A. I didn’t feel, I’d seen that they didn’t do that.”

The defendant claims that these questions and answers are objectionable because they call for an opinion from a lay witness, are irrelevant as they are not time specific to the date of the accident and lack foundation. Because the defendant failed to object to the form of these questions and responses at the time of the deposition, it waived them and, accordingly, the trial court properly admitted the testimony.

E

The defendant’s final evidentiary claim involves the trial court’s admission into evidence, over the defendant’s hearsay objection, of two typewritten statements signed by the plaintiffs witness, Schand, who could not be present at the time of trial. The defendant claims that only the portions of the statements that contained prior inconsistent statements of the witness should have been admitted into evidence, as the remainder of the statements was inadmissible hearsay.

Although the defendant is correct in stating that some of the statements were hearsay, they were nonetheless admissible. “Connecticut has quietly adopted an open-ended approach to exceptions to the hearsay rule that permits a court to admit statements that are technically hearsay and not within traditional exceptions . . . .” Id., § 11.25, p. 414. “Though generally inadmissible, hearsay may be admitted if there is a sufficient probability that the statement is rehable and trustworthy, if the evidence contained in the statement is necessary to resolution of the case, and if the trial court concludes that admitting the statement is in the interests of justice.” State v. Stepney, 191 Conn. 233, 249-50, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772 (1984).

The trial court ruled that the plaintiff could introduce the statements in their entirety, holding that the defendant had the opportunity to cross-examine Schand at the deposition on both statements and, accordingly, the protections of the hearsay rule, i.e., to exclude the testimony of witnesses who cannot be cross-examined, do not apply. We conclude that given the fact that the defendant had the opportunity to cross-examine Schand on the contents of the written statements, the trial court did not abuse its discretion in admitting the statements in their entirety. Furthermore, even if the trial court abused its discretion in admitting the statements, they were cumulative to Schand’s deposition testimony.

The judgment is affirmed.

In this opinion the other judges concurred.

       The precise time that the storm ended was in dispute in this trial. The plaintiff’s expert, Joe Furey of the New England Weather Service, testified that the snow ended sometime between 1 and 2 a.m. on Saturday, January 8, 1994, several hours before the plaintiffs fall, which occurred at approximately 9 a.m. on January 8,1994. Furey conceded, however, that some form of light precipitation continued to fall until approximately 11 a.m. that morning. The defendant’s expert, meteorologist John Bagioni, who interpreted the data recorded by the National Weather Service Station at Brainard Airport, testified that there was precipitation in progress at 9 a.m. on January 8, 1994, which included some light snowfall.

       The defendant’s request to charge stated: “Under certain circumstances, a landowner can be liable to a person for a dangerous accumulation of ice or snow. However, the rule of law is that an owner may await the end of a freezing rain and/or sleet storm and/or snowstorm and a reasonable time thereafter before removing ice or snow from its outside entrance, walks, platforms and steps. Thus, an owner may, without violating its duty to exercise reasonable care, await the end of a storm of freezing rain, sleet and/or snow, or a reasonable time thereafter, before removing sleet and snow from its outside walks and steps, since removal would be ineffective, generally, during the continuation of a snowstorm in progress.
      “If you find that the plaintiff fell during an ongoing storm of freezing rain, sleet and/or snow, and that the ice or snow caused the fall, then you must find for the defendant.”

       The trial court charged the jury in part as follows: “Now, it is a rule of law that in the absence of unusual circumstances a landlord is permitted to wait until the end of the storm and is given a reasonable time thereafter to remove ice and snow from an outdoor entrance, walking platform or steps. This rule does not prevent you, the jury, from considering whether a storm has ended or whether a plaintiffs fall and ipjuries resulted from new ice or old ice. This rule permits you to consider whether there were unusual circumstances present which would place a responsibility on a landlord to remove ice and snow from outside walks and steps even if a storm has not ended.”

       Contrary to the defendant’s assertion in its brief, the trial court’s charge to the jury properly made reference to the testimony of both the plaintiffs experts and the defendant’s experts with respect to the time that the storm ended. The charge included the following language: “You heard testimony by John Bagioni [the defendant’s expert witness] that there was light snow through the morning until noon.” The court, therefore, properly allowed the jury to consider all of the evidence presented and to make the factual determination as to whether, at the time of the plaintiffs fall, the storm had ended and a reasonable time thereafter had passed.

       The defendant did not request the court to submit any interrogatories to the jury. Accordingly, there is no record of whether the jury based its verdict on a determination that the storm had ended and a reasonable time thereafter had passed prior to the plaintiffs accident, or on a determination that such unusual circumstances existed as to impose on the defendant a duty to clear the steps on which the plaintiff fell prior to the cessation of the storm.

       The relevant portion of the court's jury charge is as follows: “An accumulation of ice or snow of long-standing may be the proximate cause of a fall even thotigh the danger of the condition may have been increased by a recent fall of snow. Once a defective condition of a stairway due to snow and ice has been established, the fact that thereafter and before the injury occurs to the plaintiff as a result of it, the condition varies in some degree by reasons of intervening storms, this will not relieve the defendant of liability, nor will it, of itself, preclude a finding that the defendant had constructive notice of the existence of the defect. If you, the jury, find that there was a preexisting layer of snow or ice on the stairway on which the plaintiff fell and the additional layer of new snow merely caused the condition to become more slippery and dangerous, and the preexisting layer was the proximate cause of the injuries, your verdict would be for the plaintiff.”

       The court did not refuse to charge because of any claimed withdrawal of the defense.


source: Caselaw Access Project

author: SPALLONE, J.

license: Public Domain

text:
    HERMAN ROMAN v. EYELETS FOR INDUSTRY, INC., ET AL.
    (AC 16964)
    Spear, Dupont and Spallone, Js.
    Argued February 20
    officially released April 7, 1998

      Dominick C. Statile, for the appellants (defendants).

      Deborah McGill-Membrino, for the appellee (plaintiff).
   Opinion

SPALLONE, J.

The defendant employer, Eyelets for Industry, Inc., and the defendant workers’ compensation insurer appeal from a decision rendered by the workers’ compensation review board. The defendants claim that the board improperly affirmed the commissioner’s decision to award the plaintiff, Herman Roman, compensation pursuant to General Statutes § 31-294c (c) (formerly § 31-294) and denied the defendants’ June 20, 1995 motion to correct.

Our examination of the board’s record discloses the following pertinent facts. The plaintiff filed a claim with the workers’ compensation commission for alleged work-related injuries to his lower leg and ankle that he incurred when he fell into a ditch on July 11, 1991. The defendants accepted liability for the injuries, entered into a voluntary agreement dated September 27, 1991, which was approved by the commissioner, and paid benefits associated with the injury.

In October, 1991, Anthony Sterling, an orthopedist, noted that the plaintiff was experiencing groin pain and, in May, 1992, noted that the plaintiff complained of pain in his left hip, groin and presacral area. Prior to undergoing ankle surgery, the plaintiff sought a second opinion from another physician, who indicated complaints of hip, groin and back pain in December, 1991. Phoenix Physical Therapy, where the plaintiff completed physical therapy for the ankle injury, also noted his complaints of pain in the lower back and left groin area. After the plaintiff concluded treatment for his ankle in October, 1992, he was given a 10 percent permanent partial disability rating by Sterling.

The plaintiff continued to have pain in his lower back and was seen by Jarob Mushaweh, a neurosurgeon. After magnetic resonance imaging (MRI), a computerized axial tomography (CAT) scan and lumbar myelo-gram procedures, the plaintiff was diagnosed as suffering from disc herniations at Ll-2, L3-4 and L4-5 of his spine. Sterling and Myron Shafer, another orthopedist who performed an independent medical examination of the plaintiff, both indicated that the plaintiffs groin pain resulted from his back injuries.

After a fully contested formal hearing before the workers’ compensation commission, the commissioner found that the plaintiffs back injury was caused by and resulted from the accident that occurred on July 11, 1991. It was also determined that this accident precipitated the agreement that was voluntarily entered into by the plaintiff and the defendants on September 27, 1991. The commissioner ruled that the back injury was compensable. The defendants then appealed to the board, which, in its opinion dated February 14, 1997, affirmed the commissioner’s decision. This appeal followed. We affirm the board’s decision.

I

The defendants first claim that the plaintiff is barred from recovery because he failed to file a notice of claim, pursuant to § 31-294c (c), that specifically referenced his back injuries. That argument is unavailing. Pursuant to § 31-294c (c), no notice of claim is required if the employee is furnished with medical care for the injury within the one year period from the date of the accident. There is ample evidence to indicate that the plaintiffs medical records detailed complaints of hip, groin and back pain prior to the expiration of one year from the date of the injury. The defendants paid several physicians for services and tests involved with the plaintiffs treatment for back pain both during and after the expiration of the one year period. In fact, Mushaweh treated the plaintiff exclusively for his back pain.

“The [medical care] exception is, no doubt, based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of such a claim.” Ges-mundo v. Bush, 133 Conn. 607, 612, 53 A.2d 392 (1947); Infante v. Mansfield Construction Co, 47 Conn. App. 530, 535, 706 A.2d 984 (1998); see also Landrette v. Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149 (1993); Hebert v. New Departure Hyatt Bearings, 4 Conn. Workers’ Comp. Rev. Op. 94 (1987).

“We next set forth our standard of review. The conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Green v. General Dynamics Corp., 44 Conn. App. 112, 115, 687 A.2d 550 (1996), cert. granted on other grounds, 240 Conn. 916, 692 A.2d 813 (1997).” Infante v. Mansfield Construction Co., supra, 47 Conn. App. 537. Here, the trial commissioner resolved a question of disputed fact on the basis of evidence that was presented. His conclusions were reasonably supported by the evidence and cannot be disturbed on appeal. Lemieux v. Highland Dairy Co., 121 Conn. 483, 486, 185 A. 433 (1936).

II

The defendants’ second claim—that the trial commissioner improperly denied the defendants’ motion to correct—is without merit. The commissioner denied the motion on the aspect of the plaintiffs back injury because of the deposition of the defendants’ expert, who stated that groin pain would be related to a back injury. The trial commissioner’s factual findings, on the basis of the totality of the evidence presented at trial, are clearly supported by such evidence and are, therefore, unassailable. See Rivera v. Guida's Dairy, 167 Conn. 524, 526, 356 A.2d 184 (1975); Hicks v. Dept. of Administrative Services, 21 Conn. App. 464, 466, 573 A.2d 770, cert. denied, 216 Conn. 804, 577 A.2d 716 (1990). We conclude that the board, in affirming the commissioner’s decision, acted properly and in accordance with applicable law.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-294c (c) provides in relevant part: “Failure to provide a notice of claim . . . shall not bar maintenance of the proceedings if . . . within a one-year period from the date of the accident ... an employee has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care . . . .”


author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. ADOLPH WILLIAMS
    (AC 15742)
    O’Connell, C. J., and Schaller and Cretella, Js.

      Argued December 15, 1997
    officially released April 7, 1998

      Richard Emanuel, with whom, on the brief, were Kim E. Kerber and Christine A. Robinson, certified legal interns, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

SCHALLER, 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), carrying a pistol without a permit in violation of General Statutes § 29-35, and commission of a class A, B or C felony with a firearm in violation of General Statutes § 53-202k. On appeal, the defendant claims that the trial court improperly (1) admitted the hearsay statement of a witness regarding a threat made against the victim by the defendant’s brother, (2) concluded that sufficient evidence was presented at trial to prove the defendant’s guilt beyond a reasonable doubt on the charge of carrying a pistol without a permit, (3) instructed the jury on the definition of reasonable doubt, and (4) violated the defendant’s constitutional right against double jeopardy when it convicted him of both manslaughter in the first degree and the commission of a class A, B or C felony with a firearm. We vacate the conviction of the violation of § 53-202k and affirm the judgment of the trial court in all other respects.

The jury reasonably could have found the following facts. On September 11, 1994, Andrew Mathis, Lori Thompson and the victim, Bradley Grandison, were on Wilmot Avenue in Bridgeport. Mathis, who was the state’s chief witness, testified that he was selling crack cocaine with Grandison serving as his lookout to direct customers from the street to Mathis, who was waiting out of view. The three had just finished smoking crack cocaine when Thompson, Grandison’s girlfriend, left the scene to go to a nearby restaurant. As Mathis and Grandison were engaged in drug transactions, a car pulled up to the curb with the passenger side facing Grandison. Mathis identified the passenger as the defendant, Adolph Williams.

Mathis testified that he heard the defendant say to Grandison, “My brother wants his money.” Mathis also heard the defendant mention the sum of $100. Grandi-son responded that he did not have the money to pay the defendant. Grandison then moved close to the car and stuck his head inside the passenger side window. Mathis could not hear the ensuing conversation, but saw Grandison back away from the car. Mathis then saw a large silver gun in the defendant’s hand and heard the defendant say, “You think I’m playing?” The defendant got out of the car with the gun in his hand and said, “I want the money.” From a distance of four to five feet, the defendant fired several shots at Grandison, who was unarmed. Mathis observed the defendant point the gun downward so as to shoot Grandison in the legs. Grandison fell to the ground and the defendant got back into the car, which was driven away from the scene. Mathis ran from the scene after the shooting.

Thompson heard gunshots as she was returning from the restaurant. She saw the car speed away but got only a brief glimpse of the driver, whom she recognized but could not name. She ran to the scene and saw Grandison lying on the ground. He was unable to speak. Grandison was taken to a hospital where he later died from multiple gunshot wounds to the legs, chest and abdomen. Thompson had also been present at the same location on Wilmot Avenue several days prior to the shooting when Grandison and the defendant’s brother, Terrence Williams, were arguing. Thompson testified, over objection, that she heard Terrence Williams tell Grandison that “he was going to shoot him if he did not get his money” and that Grandison responded that he did not have any money.

At trial, the defendant, who was then seventeen years old, testified in his own defense and claimed that he did not know Grandison and was not near the scene of the crime on the day in question. He testified that he was at the house of a friend’s girlfriend, approximately five or six blocks away from the scene, during the time of the shooting.

On November 30, 1995, after a six day trial, the jury found the defendant not guilty of the crime of murder, but guilty of the lesser included offense of manslaughter in the first degree. The jury also found the defendant guilty of the charges of carrying a pistol without a permit and commission of a class A, B or C felony with a firearm. On January 19, 1996, the trial court sentenced the defendant to fifteen years imprisonment suspended after eight years and five years probation on the charge of manslaughter, one year imprisonment to run concurrently on the charge of carrying a pistol without a permit, and five years imprisonment to run consecutively on the charge of commission of a felony with a firearm. The total effective sentence was fifteen years, execution suspended after thirteen years, and five years probation. This appeal followed.

I

The defendant first claims that the trial court improperly admitted the hearsay statement of Thompson regarding the threat made by the defendant’s brother against the victim several days prior to the shooting. Specifically, the defendant claims that the trial court admitted the hearsay statement although no recognized exception to the hearsay rule justified its admission. We conclude that the statement was not offered to prove the truth of the matter asserted and, therefore, was not hearsay. As a result, it was proper for the trial court to admit the statement.

The defendant’s claim is an evidentiary one, and “ ‘[t]he trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.’ ” State v. Bruno, 236 Conn. 514, 549, 673 A.2d 1117 (1996). “The trial court also has broad discretion in balancing the probative value of proffered evidence against its prejudicial effect. That discretion is subject to reversal only where an abuse of discretion is manifest or where an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Weber, 31 Conn. App. 58, 65, 623 A.2d 506, cert. denied, 226 Conn. 908, 625 A.2d 1379 (1993).

The trial court admitted the testimony regarding the out-of-court statement of the defendant’s brother on the ground that it was a third party threat, which is admissible against the defendant where there was some connection between the threat and the defendant, pursuant to State v. Leecan, 198 Conn. 517, 533-34, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986), and State v. Taft, 25 Conn. App. 578, 584-85, 595 A.2d 918, cert. denied, 220 Conn. 921, 597 A.2d 343 (1991). The trial court’s admission of the statement under this authority was incorrect. This was not a situation where a prospective witness in a pending criminal proceeding was threatened by a third party connected to the defendant, where the evidence was introduced to show the defendant’s consciousness of guilt, as was the case in Leecan and Taft. Nevertheless, we conclude that the statement was admissible because it was not hearsay; it was not introduced to prove the truth of the matter asserted in the statement. Despite the trial court’s incorrect basis for admitting the statement, we can sustain admission of the evidence if other proper grounds exist for admission of the statement. Johnny Cake, Inc. v. Zoning Board of Appeals, 180 Conn. 296, 301, 429 A.2d 883 (1980); see Polymer Resources, Ltd. v. Keeney, 32 Conn. App. 340, 348, 629 A.2d 447 (1993).

Thompson testified that she heard the defendant’s brother threaten to shoot the victim if he did not pay a debt owed to him. We conclude that this testimony was relevant because it tended to connect the defendant to the crime charged. The only eyewitness to the crime testified that immediately prior to the fatal shooting, he heard the shooter demand payment of a $100 debt owed to his brother. When the victim stated that he did not have the money, the shots were fired that resulted in the victim’s death. Thus, the statement was introduced to prove the defendant’s motive for shooting the victim: to collect the debt owed to his brother.

“Hearsay is an out-of-court statement that is offered to establish the truth of the facts contained in the statement. . . . State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967), and Murray v. Supreme Lodge, N.E.O.P., 74 Conn. 715, 718, 52 A. 722 (1902). A statement may or may not be hearsay, depending upon the purpose for which it is offered. When declarations are offered . . . for the purpose of showing that such statements were made and not that what was declared was true, they do not come within the rule. . . . McDermott v. McDermott, 97 Conn. 31, 37-38, 115 A. 638 (1921); Engel v. Conti, 78 Conn. 351, 354, 62 A. 210 (1905).” (Citations omitted; internal quotation marks omitted.) State v. Jaynes, 35 Conn. App. 541, 548, 645 A.2d 1060, cert. denied, 231 Conn. 928, 648 A.2d 880 (1994).

An out-of-court statement introduced to prove the motive of the accused, but not the truth of the matter asserted in the statement, is admissible. State v. Alvarez, 216 Conn. 301, 311, 579 A.2d 515 (1990). In Alvarez, the state offered a declarant’s statements “not for the truth of the matter asserted therein, but rather to show the effect of the statements upon the defendant. The jury could infer from the statements that the defendant had a motive to kill the victim. United States v. Cline, 570 F.2d 731, 734 (8th Cir. 1978). This is not hearsay. State v. Hull, [210 Conn. 481, 498-99, 556 A.2d 154 (1989)]; State v. Gonzales, 186 Conn. 426, 429, 441 A.2d 852 (1982); C. McCormick, Evidence (3d Ed. [1984]) § 249 [pp. 733-34],

“It is not material whether [the declarant] in fact wanted the victim killed or whether in fact the victim owed [the declarant] money. Because the testimony was offered to show the defendant’s motive for shooting the victim, its admissibility does not depend upon the truth of the statements uttered by [the declarant]. United States v. Cline, supra [570 F.2d 734], The inability to assess the credibility of [the declarant’s] statements was, therefore, immaterial. The question of whether the words were spoken or not was a matter within [the witness’] knowledge. Id., 735. Since he was under oath and subject to cross-examination no hearsay dangers were posed by his testimony. Id.; United States v. Hicks, 848 F.2d 1, 3 (1st Cir. 1988).” (Internal quotation marks omitted.) State v. Alvarez, supra, 216 Conn. 311.

In the present case, the statement at issue was not introduced for its substantive truth, and therefore was not hearsay. “The matter asserted [in an out-of-court statement is] the matter asserted by the writing or speech, not the matter asserted by the proponent of the evidence.” (Internal quotation marks omitted.) State v. Esposito, 223 Conn. 299, 315, 613 A.2d 242 (1992). In this case, the truth of the matter asserted in the statement would relate to the existence of the debt and the threat that Grandison would meet with violence at the hands of the defendant’s brother if that debt was not paid. The state did not introduce the statement for purposes of proving any of these matters because none of these matters was at issue in the trial. The statement was introduced to prove the identity of the defendant in connection with his brother’s threat, and to refute the defendant’s claimed alibi. The existence of the threat made by the defendant’s brother tended to connect the defendant to the crime and to prove his motive for committing the crime. While motive is not an element of the ciime that the state must prove beyond a reasonable doubt, it was an important factor in this case because the identity of the shooter was the critical issue at trial. For these reasons, we conclude that the statement was not introduced to prove the truth of its content and, therefore, was properly admitted by the trial court.

The defendant alternatively claims that if the statement was admissible, its prejudicial effect on the defendant substantially outweighed its probative value and, as a result, it should have been excluded by the trial court. We already have noted that this statement was relevant because it was probative on the issue of the defendant’s motive to kill the victim, an important component of this case. Accordingly, the trial court did not abuse its discretion in admitting the statement. See State v. Marra, 222 Conn. 506, 517-23, 610 A.2d 1113 (1992) (probative value exceeded prejudicial effect and any prejudicial effect impacted weight, not admissibility of evidence). We therefore conclude that the probative value of the statement outweighed any prejudicial effect to the defendant.

II

The defendant next claims that the trial court improperly concluded that there was sufficient evidence presented to prove his guilt beyond a reasonable doubt on the charge of carrying a pistol without a permit in violation of § 29-35. Specifically, the defendant claims that the state presented insufficient evidence regarding whether the size of the barrel of the gun used by the shooter was less than twelve inches in length, as provided in General Statutes § 29-27.* 1*3* We do not agree.

As a preliminary matter, we note that this claim was not raised at trial. The defendant seeks review of this claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree with the defendant that this claim is reviewable on the basis of State v. Hamilton, 30 Conn. App. 68, 71, 618 A.2d 1372 (1993), aff'd, 228 Conn. 234, 636 A.2d 760 (1994), where we reviewed an identical claim under Golding.

The following additional facts are necessary for proper resolution of this claim. Mathis testified at trial regarding the size of the gun that he saw the defendant brandish during the shooting. Mathis testified that he was familiar with guns, that the gun was “big,” that it “looked like a .357,” but that it could have been a .45. He stated that it was as much as a foot long, a “long, big, thick gun.” Mathis held up his hands and spread them apart to demonstrate the size of the gun to the jury.

“ ‘When reviewing a sufficiency of the evidence claim, we first examine the evidence in the light most favorable to upholding the jury’s verdict. State v. Avis, 209 Conn. 290, 309, 551 A.2d 26 (1988), cert. denied, 489 U.S. 1097, 109 S. Ct. 1570, 103 L. Ed. 2d 937 (1989); State v. Rice, 25 Conn. App. 646, 650, 595 A.2d 947 (1991). We then determine on the basis of the facts established and the inferences that reasonably could be drawn from those facts whether the jury reasonably could 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. Hopes, 26 Conn. App. 367, 376, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989).’ State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). Our inquiry into whether the evidence in the record would support a finding of guilt beyond a reasonable doubt does not require us to ask if we believe that the evidence established guilt beyond a reasonable doubt, but rather if ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) State v. Boykin, 27 Conn. App. 558, 563-64, 609 A.2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992). Once a defendant has been found guilty of the crime charged, we conduct our judicial review of all of the evidence in the light most favorable to the prosecution. Id., 564.” State v. Hamilton, supra, 30 Conn. App. 71-72.

While the only evidence presented with respect to the length of the gun barrel came from Mathis’ testimony, there was sufficient evidence for any rational jury to conclude that the gun barrel was less than twelve inches in length. When Mathis was asked if the gun was as much as a foot long, he responded in the affirmative. Because both the question and the answer referred to the approximate length of the entire gun, the jury could infer that the barrel would necessarily be shorter than twelve inches. In addition, Mathis testified that the defendant held the gun in his “hand” not his hands. If the length of the gun barrel were longer than twelve inches, the jury could infer that the defendant might not be able to hold the weapon with only one hand.

Finally, Mathis was asked to demonstrate to the jury the size of the gun by spreading his hands apart. While the record does not reflect exactly how far apart his hands were, the jury witnessed this demonstrative evidence and, after being instructed on the state’s burden of proving the length of the barrel, convicted the defendant of carrying a pistol without a permit. “Jurors are not expected to lay aside matters of common knowledge or their own observations and experiences, but rather, to apply them to the facts as presented to arrive at an intelligent and correct conclusion. State v. Cintron, 39 Conn. App. 110, 119, 665 A.2d 95 (1995).” State v. Crump, 43 Conn. App. 252, 256, 683 A.2d 402, cert. denied, 239 Conn. 941, 684 A.2d 712 (1996). The jury apparently believed that the cumulative effect of Mathis’ testimony and demonstrative evidence were sufficiently probative on the element of the length of the gun barrel. We conclude that there was sufficient evidence presented to allow the jury to conclude as it did.

III

The defendant next claims that the trial court improperly instructed the jury on the definition of “reasonable doubt.” Specifically, he claims that the trial court violated his right to due process of law when it instructed the jury that reasonable doubt is “a doubt for which a valid reason can be assigned” and “a real doubt, an honest doubt.” We are not persuaded.

This claim was not preserved at trial, and the defendant seeks review under State v. Golding, supra, 213 Conn. 239-40. This specific jury instruction regarding the meaning of reasonable doubt has been addressed previously in several cases. See State v. Campbell, 225 Conn. 650, 626 A.2d 287 (1993); State v. Thomas, 214 Conn. 118, 570 A.2d 1123 (1990); State v. Crosby, 34 Conn. App. 261, 641 A.2d 406, cert. denied, 230 Conn. 903, 644 A.2d 916 (1994); State v. Johnson, 29 Conn. App. 584, 617 A.2d 174 (1992), appeal dismissed, 228 Conn. 59, 634 A.2d 293 (1993). Because those cases hold that this type of jury instruction is proper, we conclude that review under Golding is not justified because no constitutional violation has occurred that has deprived the defendant of a fair trial.

IV

The defendant finally claims that the trial court improperly violated his constitutional right against double jeopardy when it convicted him of both manslaughter in the first degree and of the commission of a class A, B or C felony with a firearm. We disagree that the defendant’s constitutional right against double jeopardy was violated, but agree that his separate conviction under § 53-202k should be vacated.

The double jeopardy issue has previously been addressed by this court in State v. Ingram, 43 Conn. App. 801, 826, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997), in which we concluded that providing for sentence enhancement for crimes committed with a firearm was a valid legislative determination that did not violate the constitutional prohibition against double jeopardy. Therefore, the defendant’s double jeopardy claim is without merit.

Our Supreme Court recently addressed the issue of whether § 53-202k constituted a separate substantive offense in State v. Dash, 242 Conn. 143, 146, 698 A.2d 297 (1997), and concluded that it is only a sentence enhancement provision, not a separate substantive offense for which a defendant can be convicted. The state concedes that Dash is controlling here and that the defendant’s conviction under § 53-202k should be vacated. Accordingly, we remand the case to the trial court to vacate that conviction and to resentence the defendant on the other charges enhanced pursuant to § 53-202k.

The judgment is reversed in part and the case is remanded with direction to vacate the defendant’s conviction under § 53-202k and to resentence the defendant in accordance with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

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

         General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       General Statutes § 53-202k provides in relevant part: “Any person who commits any class A, B or C felony and in the commission of such felony uses, or is armed with and threatens the use of, or displays, or represents by his words or conduct that he possesses any firearm, as defined in section 53a-3 . . . shall be imprisoned for a term of five years, which shall not be suspended or reduced and shall be in addition and consecutive to any term of imprisonment imposed for conviction of such felony.”

       We note that both the judgment file and the revised mittimus dated February 28, 1996, state that the total effective sentence is fifteen years, execution suspended after thirteen years. We believe this to be a clerical error because a review of the individual sentences for each count reveals that the total effective sentence should be twenty years, fifteen years for manslaughter in the first degree plus five years under § 53-202k, suspended after thirteen years. Because we are remanding the case for resentencing, this apparent clerical error can be corrected at that time.

       General Statutes § 29-27 provides: “The term ‘pistol’ and the term ‘revolver’, as used in sections 29-28 to 29-38, inclusive, mean any firearm having a barrel less than twelve inches in length.”

       “Under Golding, a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met:
      (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” (Internal quotation marks omitted.) State v. Lasky, 43 Conn. App. 619, 631 n.5, 685 A.2d 336 (1996), cert. denied, 239 Conn. 959, 688 A.2d 328 (1997).


author: FOTI, J.

text:
    STATE OF CONNECTICUT v. KEITH J. FULLER
    (AC 15737)
    Foti, Landau and Spear, Js.

      Argued January 20
    officially released April 7, 1998

      Norman A. Pattis, for the appellant (defendant).

      Eileen McCarthy Geel, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of larceny in the second degree in violation of General Statutes § 53a-123, four counts of robbery in the third degree in violation of General Statutes § 53a-136, two counts of larceny in the third degree in violation of General Statutes § 53a-124, and one count of assault of a victim sixty years of age or older in violation of General Statutes § 53a-61a. The defendant claims that he is entitled to a new trial on all charges because the trial court improperly admitted evidence of his escape from custody, thereby violating his right to due process. The defendant also claims that he is entitled to a judgment of acquittal on one count of larceny in the second degree because the evidence was insufficient to sustain that conviction. We affirm the judgment of the trial court.

From the evidence presented at trial and reasonable inferences drawn therefrom, the jury reasonably could have found the following facts. On May 4,1992, at about 9:30 p.m., as Annluise Coombs was placing her purse and other items in the backseat of her car, the defendant came up behind her and told her not to scream and to give him her pocketbook. Following a brief struggle, the defendant took Coombs’ purse, which contained her wallet, driver’s license, credit cards, checkbooks and eyeglasses. On May 12, 1992, Coombs was shown a black and white photographic array that included a six year old photograph of the defendant. Coombs was unable to identify her attacker from any of the photographs. On June 18,1992, she was shown a color photographic array that included a photograph of the defendant that was taken subsequent to his June 8, 1992 arrest for unrelated matters. Coombs selected the defendant as her attacker, and signed and dated the photograph. Coombs also made an in-court identification of the defendant as her assailant.

Later in the evening of May 4, 1992, the defendant and a female companion took a taxicab ride that lasted over an hour and included several stops at grocery stores and gasoline stations. The defendant and his companion told the cab driver, William Baysah, that they were trying to buy cigarettes with a credit card. Toward the end of the cab ride, the defendant purchased $ 10 worth of gas with a credit card that belonged to Coombs. At the end of the cab ride, the defendant’s companion paid Baysah with a check from Coombs’ checkbook and used Coombs’ driver’s license as identification. On June 18, 1992, Baysah selected the defendant’s picture from a photographic array and identified him as the male passenger. He also made an in-court identification of the defendant.

On May 9, 1992, Lawrence Agostini, who was sixty-one years old at the time, parked his car in St. Bernard’s Cemeteiy on Ella Grasso Boulevard in New Haven. When he returned to his bronze colored, four wheel drive 1985 AMC Eagle station wagon, he noticed the defendant and another black male walking toward him. As Agostini prepared to enter the car, the defendant approached him and demanded his wallet and keys. When the defendant found the keys to the car on the driver’s seat, Agostini tried to stop him from taking the car. The defendant punched Agostini in the left temple. Agostini fell to the ground and the defendant drove away in Agostini’s car. On June 15, 1992, Agostini selected a picture of the defendant from a ten picture photographic array and stated that, while he was not 100 percent certain of the identification, the photograph was of a man who strongly resembled his attacker.

On May 16,1992, at about 3:30 p.m., Linda Proto was driving from West Haven into New Haven along Forest Road. Proto’s five year old daughter was with her in the front passenger seat of her 1988 Oldsmobile Cutlass Cierra. As she was driving, she noticed that her car was being tailgated by a small bronze colored American car with three black men in it. The car accelerated when she did and followed her through a series of turns. Proto watched the driver in her rearview mirror. The bronze car bumped the rear bumper of Proto’s car shortly after she pulled onto Lawncrest Avenue in New Haven. Proto pulled to the side of the road and did not get out of the car. The defendant, who was driving the car behind her, got out of that car and approached Proto’s car. The defendant, who was wearing a baseball cap, came to Proto’s window and told her to get out to view the damage. As she got out of the car, she turned to face the defendant and saw his face. The defendant then punched her. The next thing Proto could recall was being in the street on her hands and knees and seeing the defendant sitting in the driver’s seat of her car. Proto screamed, “Let my baby go. Don’t take her.” As Proto continued to scream and run toward her car, the defendant yelled at her daughter to get out of the car. Proto’s daughter unbuckled her seat belt and opened the car door. Once the child was out of the car, the defendant drove away in Proto’s car and his accomplices drove away in the other car. The defendant took clothing, Proto’s purse, which contained approximately $60, and her daughter’s coat. At about midnight on May 16,1992, Proto received a call from the police reporting that her car had been found. When Proto went to pick up her car at the police garage, it was parked next to a small bronze colored American car.

On May 29, 1992, Proto viewed eight pictures in a black and white photographic array that contained a six or seven year old picture of the defendant. Proto selected the picture of the defendant from the array and told Dennis Kelly, a New Haven police detective, that the man in the photograph looked similar to her attacker. Because Proto was somewhat unsure of her identification, Kelly brought her to the New Haven Superior Court on June 9,1992, to view an arraignment of about twenty people. Proto saw the defendant at the arraignment and immediately recognized him as her assailant. When the defendant looked over at Proto, he tried to hide his face from her. After leaving the courtroom, Proto confirmed to Kelly that the defendant was her assailant and carjacker. Proto identified the defendant again at trial.

On May 20, 1992, at about 1:15 p.m., the defendant approached Henry Rathgeber, then eighty-two years old, as Rathgeber was getting out of his 1985 Volvo station wagon in the parking lot of the Westville branch of the New Haven Public Library. The defendant told Rathgeber that he needed money for a ride to Bridgeport. When Rathgeber refused to give him money, the defendant told Rathgeber to give him his wallet and money or he would be shot. Rathgeber hit the defendant in the back of the neck and opened the car door into him. While the defendant was bending over, recovering from the blow, Rathgeber ran away toward the street. The defendant caught up to Rathgeber about thirty feet from his car, tackled him and took his wallet from his pocket. The defendant then demanded Rathgeber’s car keys. Rathgeber again resisted, but the defendant pried the keys from Rathgeber’s fist. The defendant then drove away in Rathgeber’s car. This incident was witnessed by Eliyahu Katz. On June 12, 1992, Katz was shown a ten picture color photographic array from which he selected the defendant’s picture as being of Rathgeber’s assailant. In addition to the details given by Rathgeber, Katz recalled that the defendant wore a blue baseball cap that fell off at the time of the attack.

On June 1, 1992, at about 11 p.m., Joan Paganelli, a licensed practical nurse at Windsor Castle Health Care Center on Ella Grasso Boulevard in New Haven, went to her car in the health facility’s well lit parking lot. As she opened the door of her 1975 Chevrolet Impala, the defendant came up to her, pulled her out of the car and said, “Give me your keys, bitch.” Paganelli immediately left the car with her purse in it and returned to the health care facility. The police called Paganelli about two days later and informed her that her car had been found with a flat tire not far from where it was stolen. On June 15,1992, Kelly showed Paganelli a color photographic array from which she selected the defendant’s picture. Paganelli signed and dated the photograph she had selected. Paganelli also identified the defendant at trial as the person who had stolen her car.

On June 8,1992, the defendant was arrested for robbery and larceny following an incident unrelated to those previously mentioned. Because of the similarities between the crimes for which the defendant was arrested on June 8, 1992, and several other recent robberies and larcenies, Joseph Howard, a New Haven police detective and sergeant questioned the defendant about fifteen cases in an interview room at the police department. At times during the interview, Howard was alone with the defendant, while at other times, detectives also were present in the interview room. The defendant was advised of his rights and voluntarily waived them.

During his interview with Howard, the defendant, who had known Howard for about ten years, admitted his involvement in the May 9,1992 robbery of Agostini’s 1985 AMC Eagle station wagon at St. Bernard’s Cemetery. The defendant also admitted that on May 16,1992, he was driving the car that rear-ended Proto’s car, which he then stole. When Howard reminded the defendant that Proto’s five year old daughter was in the front passenger seat for a short time, the defendant would not say anything more about the case.

When questioned about the Rathgeber robbery and assault, the defendant recalled stealing a 1985 Volvo station wagon from the victim and the location where he had abandoned the car. On further questioning, the defendant admitted that on June 1, 1992, he had stolen a 1975 Chevrolet Impala at the Windsor Castle Health Care Center. The defendant said that he had driven the cai' only a short distance when a tire had gone flat. The defendant denied any involvement in the theft from Coombs, as well as the remainder of the fifteen cases.

I

The defendant claims that the trial court improperly allowed the jury to hear evidence of his August 28,1992 escape from custody for purposes of demonstrating his possible consciousness of guilt.

The facts relevant to this claim may be summarized as follows. On August 28, 1992, at about 3:30 p.m., Special Deputy Patrick Egan and other members of the New Haven sheriffs department were transporting prisoners from the New Haven courthouse. As the prisoners were boarding the transport van, the defendant and another prisoner broke free and ran. Egan ran after the defendant, chasing him for several blocks before catching up with him. The defendant later was returned to the Whalley Avenue correctional center.

In its instructions to the jury, the trial court stated: “The flight of a person accused of a crime is a circumstance which, when considered with all the facts, may justify an inference of the accused’s guilt. Flight, however, if shown, is not conclusive. It’s circumstantial evidence, and you may or may not infer consciousness of guilt from it. It is to be given the weight to which you think it is entitled under the circumstances.”

The defendant argues that the state made no effort to inform the jury of the crimes for which he was in custody when he attempted to escape. The defendant further argues that to introduce evidence of his attempted escape to support an inference of guilt, the state must show that he was fleeing from the “crime charged.” The defendant also argues that the jury reasonably could have inferred that his attempted escape demonstrated a consciousness of guilt of the unrelated crimes for which he was being held, rather than of the crimes for which he was tried in this matter. We do not agree.

Evidence of flight or escape is admissible to show consciousness of guilt. State v. Burak, 201 Conn. 517, 532-33, 518 A.2d 639 (1986). The probative value of such evidence depends on the facts pointing to the motive that prompted the flight or escape. State v. Piskorski, 177 Conn. 677, 723, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979). We have previously rejected challenges substantially similar to that presented by the defendant. See State v. Williams, 27 Conn. App. 654, 663-65, 610 A.2d 672, cert. denied, 223 Conn. 914, 614 A.2d 829 (1992); State v. Briggs, 17 Conn. App. 648, 656-57, 554 A.2d 1112, cert. denied, 211 Conn. 802, 559 A.2d 1137 (1989).

The defendant was arrested on June 28, 1992, after having admitted to Howard, on June 8,1992, his involvement in a number of the incidents at issue in this case. Further, on June 9, 1992, the defendant observed one of his victims, Proto, identifying him while he was being arraigned on other charges. Under these circumstances, the trial court properly admitted evidence of the defendant’s attempted escape on August 28, 1992, and properly instructed the jury on the inferences that could be drawn from that evidence.

II

The defendant next claims that the evidence was insufficient to sustain his conviction for larceny in the second degree for the May 16, 1992 theft of the Proto vehicle. Specifically, he contends that the state did not present sufficient evidence to establish that the value of the motor vehicle exceeded $5000. General Statutes § 53a-123 (a) (l). We do not agree.

The facts relevant to this claim are as follows. Detective Ralph Puglia, a law enforcement officer with the West Haven police department for twenty-seven and one-half years, testified that he was assigned to the New Haven county auto theft task force. His duties in that position included investigating “chop shops,” the sale of cars and carjackings. One of his specific duties was to value vehicles that had been stolen. Puglia informed the jury of the value of each of the four stolen cars at the time they were stolen in May, 1992. Puglia testified that he did not view and appraise each car separately, but used the “red book,” which is a well known publication that is utilized by used car dealers to determine the sales prices of used cars. Puglia characterized the use of the red book as the “generally accepted method of determining the value of an automobile.” He informed the jury that the figures he used represented the “average retail value” of the cars at the time of the thefts. He acknowledged that any car could be worth more or less than the price listed. When asked about the value of Proto’s 1988 Oldsmobile Cutlass Cierra, Puglia testified that it was between $5500 and $6200.

In reviewing a claim involving sufficiency of the evidence, we apply a two part test. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts . . . impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom . . . the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. ...” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 132, 646 A.2d 169 (1994). “[W]e give deference not to the hypothesis of innocence posed by the defendant, but to the evidence and the reasonable inferences drawn therefrom that support the jury’s determination of guilt.” State v. Dukes, 46 Conn. App. 684, 690, 700 A.2d 119 (1997).

The defendant’s sufficiency claim is not an attack on the competency of the state’s witness to testify as to the value of the car, but rather on the substance of his testimony. The defendant argues that because the state’s expert testified that he had never seen or inspected the car, there was insufficient evidence before the jury to find that the car was valued at more than $5000.

We do not agree that under these circumstances, an inspection is a prerequisite to an expert’s appraisal. If the stolen vehicle had been recovered, destroyed or not recovered at all, testimony as to its value at the time of the theft would certainly have been permitted without an inspection. Moreover, the defendant does not claim on appeal that Puglia’s testimony was based on information derived from an untrustworthy source.

We conclude that the state presented sufficient evidence for the jury to have found that at the time of the theft, the value of Proto’s automobile exceeded $5000.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was charged with numerous counts arising out of six incidents in New Haven on five separate dates in May and June of 1992. The defendant consented to a consolidation of all matters for trial. At the close of evidence and before jury deliberations, the state filed a twelve count substitute information. The defendant was acquitted of one count each of robbery in the third degree, larceny in the third degree and assault of a victim sixty years of age or older. The defendant also was acquitted of one count of risk of iiyury to a child in violation of General Statutes § 53-21, brought pursuant to a separate information.

       On appeal, the defendant does not claim that the trial court abused its discretion in admitting this evidence.

       The jury was informed of the date of arrest through the testimony of the state’s witness, Howard.

       General Statutes § 53a-123 (a) provides in relevant part: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and: (1) The property consists of a motor vehicle, the value of which exceeds five thousand dollars . . . .”

       The determination of the qualification of an expert is a matter for the discretion of the trial court. Siladi v. McNamara, 164 Conn. 510, 513, 325 A.2d 277 (1973). “Expertise may come from practical experience or study alone.” State v. Wallace, 181 Conn. 237, 241, 435 A.2d 20 (1980).


author: O’CONNELL, C. J.

text:
    DOMINGO PAUL v. CITY OF NEW HAVEN ET AL.
    (AC 16613)
    O’Connell, C. J., and Schaller and Spear, Js.
    Argued January 12
    officially released April 7, 1998

      Alexander Scheirer, for the appellant (plaintiff).

      Raymond E. Epps, assistant corporation counsel, with whom, on the brief, was Patricia A. Cofrancesco, corporation counsel, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiff, a New Haven police officer, appeals from the summary judgment rendered in favor of the defendants. The defendants are the city of New Haven, its police chief and the New Haven board of police commissioners. The plaintiff claims that the trial court improperly (1) held that the plaintiff failed to exhaust his administrative remedies, (2) rendered summary judgment on the basis of the temporary injunction hearing and (3) held that the complaint failed to state a cause of action under 42 U.S.C. § 1983. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of this appeal. On July 11, 1994, the defendant police chief preferred charges against the plaintiff for engaging in conduct unbecoming a police officer. A disciplinary hearing before the board of police commissioners began on December 7, 1994, and was continued to September 20, 1995.

Prior to the continuation of the disciplinary hearing, the plaintiff brought the present action, seeking an injunction to prevent the defendants from proceeding with the disciplinary hearing as well as money damages pursuant to 42 U.S.C. § 1983. In his complaint, the plaintiff alleged that the New Haven Register newspaper had published an article containing police internal affairs information regarding the circumstances that led to the lodging of disciplinary charges against him. The plaintiff claimed that this information had been improperly released by the defendants and that its publication in the New Haven Register deprived him of a fair and impartial hearing before the board.

The plaintiff simultaneously filed an application for a temporary injunction to restrain the board from proceeding with his disciplinary hearing. On September 20, 1995, the trial court, Booth, J., issued an order to show cause why a temporary injunction should not issue. The order directed the defendants to stay the disciplinary hearing until they appeared before the court to address the injunction request. At the hearing on the order to show cause, the trial court, Barnett, J., found that the plaintiff had failed to prove that as a result of the newspaper article, the board would be biased against him so as to deny him a fair and impartial hearing. Accordingly, the court granted the defendants’ motion to vacate the stay imposed by the order to show cause, and the board proceeded with the plaintiffs disciplinary hearing on April 23 and 24, 1996.

At the conclusion of the disciplinary hearing, the board found the plaintiff guilty of engaging in conduct unbecoming a police officer, suspended him for three months without pay and reduced his rank for one year. On April 30,1996, the plaintiff challenged the disciplinary action taken against him by filing a grievance with the state board of mediation and arbitration.

On July 10,1996, the defendants moved for summary judgment in the plaintiffs action for an injunction and for damages under § 1983. The court, Hon. Howard F. Zoarski, judge trial referee, granted the defendants’ motion on two grounds: “(1) that the plaintiff failed to exhaust his administrative remedies in challenging the disciplinary action taken against him by the [defendant] New Haven board of police commissioners; and (2) the plaintiff failed to state a cause of action under 42 U.S.C. § 1983 because the complaint fails to allege a policy or custom that resulted in a deprivation of a constitutional right.” We affirm the judgment of the trial court.

We note at the outset that the plaintiffs request for an injunction is moot in that the disciplinary hearing has already taken place. Accordingly, the plaintiffs issues on appeal remain viable only with respect to his claim for money damages pursuant to 42 U.S.C. § 1983.

I

The plaintiffs first claim is that the trial court improperly held that he had failed to exhaust his administrative remedies. To the extent that the plaintiff, through this suit, was attempting to challenge the disciplinary action taken against him by the board, he was required to exhaust his administrative remedies first. At the time this appeal was filed, the grievance that the defendant had filed with the state board of mediation and arbitration was pending before that agency.* * During the pendency of this appeal, the parties filed a settlement agreement with that agency, effectively withdrawing the plaintiffs grievance. “ ‘It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of the appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. . . ” (Citation omitted.) Cole v. Planning & Zoning Commission, 40 Conn. App. 501, 505-506, 671 A.2d 844 (1996). As a result of the settlement agreement, any claim concerning the merits of the disciplinary action is moot and we need not address the exhaustion of administrative remedies with respect to such a claim.

Exhaustion of administrative remedies, however, is not required before bringing a claim pursuant to 42 U.S.C. § 1983. Patsy v. Board of Regents of the State of Florida, 457 U.S. 496, 516, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982); Fetterman v. University of Connecticut, 192 Conn. 539, 549, 473 A.2d 1176 (1984). Thus, a failure by the plaintiff to exhaust his administrative remedies would not dispose of an otherwise valid § 1983 claim.

II

The plaintiffs second claim on appeal is that the trial court improperly granted summary judgment on the basis of the temporary injunction hearing. The plaintiffs brief provides no analysis beyond a statement of the claim. We decline to review this claim because it is not adequately briefed. See Middletown Commercial Associates Ltd. Partnership v. Middletown, 42 Conn. App. 426, 439 n.12, 680 A.2d 1350, cert. denied, 239 Conn. 939, 684 A.2d 711 (1996); Krondes v. O'Boy, 37 Conn. App. 430, 436, 656 A.2d 692 (1995).

III

In his final claim, the plaintiff argues that the trial court improperly held that the complaint failed to state a cause of action under § 1983. We are not persuaded.

“To state a cause of action under § 1983, a plaintiff must allege that a deprivation of federal rights has occurred under color of any statute, ordinance, regulation, custom or usage. . . . [T]he touchstone of [a] § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution. . . . [Municipal liability under § 1983 attaches where—and only where—a deliberate choice to follow a course of action is made from among various alternatives by city policymakers. ... In addition, § 1983 also authorizes suit for constitutional deprivations visited pursuant to governmental custom even though such a custom has not received formal approval through the body’s official decisionmaking channels.” (Citations omitted; internal quotation marks omitted.) Tedesco v. Stamford, 215 Conn. 450, 456-57, 576 A.2d 1273 (1990), on remand, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d, 222 Conn. 233, 610 A.2d 574 (1992).

In the present case, the trial court, citing Tedesco v. Stamford, supra, 215 Conn. 456-57, enunciated that “the Connecticut Supreme Court upheld the Appellate Court’s reasoning that, to state a valid cause of action under § 1983, the plaintiffs complaint must allege a policy or custom that resulted in a deprivation of a constitutional right.” The complaint in the matter before us fails to allege such a policy or custom. Accordingly, we agree with the trial court that the plaintiff has failed to state a cause of action under § 1983.

The judgment is affirmed.

In this opinion the other judges concurred.

       Title 42 of the United Slates Code, § 1983, provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .”

       The trial court treated the defendants’ summary judgment motion as a motion to dismiss. This was proper as to the claim of failure to exhaust administrative remedies, which implicates subject matter jurisdiction and should be raised by a motion to dismiss pursuant to Practice Book § 143, now Practice Book (1998 Rev.) § 10-31. Cummings v. Tripp, 204 Conn. 67, 74-75, 527 A.2d 230 (1987). On the other hand, a claim of failure to state a cause of action is properly the subject of a motion to strike; Practice Book § 152 (3), now Practice Book (1998 Rev.) § 10-39; and not a motion to dismiss. Nonetheless, the record does not indicate that the impropriety of using either a motion for summary judgment or a motion to dismiss in this manner was ever raised in the trial court. Nor was it raised before this court. We shall therefore consider the case as it was presented by the parties and addressed by the trial court, overlooking the foregoing procedural shortcomings and treating the second claim as sustainable under the same test as would have been applicable if the defendants had filed a motion to strike. See Glens Falls Ins. Co. v. Somers, 146 Conn. 708, 712-13, 156 A.2d 146 (1959); Coollick, v. Windham, 7 Conn. App. 142, 145, 508 A.2d 46 (1986).

       Another administrative option available to the plaintiff was to appeal the board’s order to the Superior Court pursuant to article XXII, § 112, of the New Haven charter.

       The terms of the settlement agreement were as follows:
      “1. The three month suspension issued to Officer Domingo Paul on April 24, 1996 shall be reduced to a one month suspension.
      “2. Officer Paul shall receive two months back pay at the rate in effect from May 24 through July 24, 1996, less appropriate deductions and payments. . . .
      “3. The one year reduction in grade shall remain in Officer Paul’s personnel file in accordance with the contract.
      “4. Neither party admits to any wrongdoing in connection with this matter.
      “5. The Union withdraws Case No. 9596-A-1537 from arbitration.
      “6. This Agreement is entered into without precedent or prejudice.”