text:
    State of Connecticut v. Kevin Cato
    (6897)
    Dupont, C. J., Foti and Lavery, Js.

      Argued January 12
    decision released May 8, 1990

      Thomas Ullman, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Dupont, C. J.

The defendant appeals from his conviction, after a jury trial, of possession of narcotics with intent to sell, in violation of General Statutes § 21a-277 (a). He claims that the court’s exclusion of a statement made by him to the arresting officer violated evidentiary principles as well as his state and federal constitutional rights to present a defense. He also claims error both in the court’s denial of his request for the jury to view the scene of the alleged crime from the same point of surveillance as was used by the police to observe him just prior to his arrest and in its failure to give a certain requested jury instruction.

The jury could reasonably have found a number of relevant facts. Two police officers, Joseph Greene and Richard Randall, received information from an informant that led to a narcotics investigation conducted at a particular location known to the officers as the locale of frequent narcotics activity. The informant described a man wearing a beige jacket, sweat pants with lettering on the leg and a hat as being involved in the sale of narcotics at that location. The officers drove by the area in an unmarked vehicle, looking for an individual matching the given description. They observed the defendant, who fit the description, standing on a corner in front of a market. They began surveillance from their vehicle, which they parked diagonally across from the market.

The day was clear and the officers had a direct and unobstructed line of vision to the corner on which the defendant was standing. They observed him for twenty to thirty minutes without using binoculars or other vision enhancement equipment. During the period of surveillance, Greene observed the defendant walk back and forth, and enter and exit the market twice. He observed a male approach and have a discussion with the defendant, who was holding a brown paper bag. He then saw the male hand money to the defendant, and the defendant reach into the bag and then hand something to the male.

Randall observed the defendant, who was holding a brown paper bag, approach a male and engage in what appeared to be a hand-to-hand narcotics transaction. Because the defendant’s back was toward him, however, Randall did not actually see money change hands or the defendant reach into the bag. Both officers, on the basis of their training and experience, believed that the exchange had been an illegal narcotics transaction.

The officers then moved their vehicle and parked approximately twenty-five feet from the defendant. They got out of the car, displaying their police badges on chains around their necks, and approached him. The defendant threw the paper bag onto the ground. Greene followed the defendant into the store, and Randall kept sight of the bag and picked it up. He opened the bag and found inside it a potato chip bag containing sixteen glassine packets of powder, later identified as cocaine.

Randall then entered the store, and the defendant was placed under arrest. A search of him was conducted incident to his arrest, and $68 was found in his pockets, although no drugs or drug paraphernalia were found. At trial, both officers testified that it is unusual for a “mere user” of narcotics to carry such a large number of packets of cocaine and that it is not unusual for one person to sell the drugs while another person holds the money.

At trial, Gary Grant, the son of the market’s proprietor, testified for the defendant. Grant, who had known the defendant for many years, testified that on the day of the defendant’s arrest, a man named Brooklyn, whom Grant had never seen before, entered the store between 1:30 and 1:45 p.m. He also testified that the defendant first entered the store that day after 2 p.m. and that, fifteen to twenty-five minutes later, Brooklyn asked the defendant to throw away a brown paper bag. Grant stated that the defendant then went outside and threw the bag toward a trash container. Shortly after the defendant returned from outside, the two police officers entered the store and arrested the defendant. The witness testified that he and others told the officers that the defendant was throwing away the bag for someone else, but that no one said that the defendant was mistakenly being arrested. Grant also stated that no one confronted Brooklyn about his alleged ownership of the bag containing the drugs. Grant stated that the bag in evidence, which was the same bag that the officers had seen the defendant discard and which one of them had immediately retrieved, was not the bag given to the defendant by Brooklyn.

At trial, the defendant, through an investigator, presented a videotape depicting the street corner in front of the market as seen from the surveillance point. The tape was filmed using a zoom lens to provide a closer view than that normally provided by a .35 mm camera. The defense also introduced a map of the area drawn to a scale of one inch to forty feet. Both parties, during closing arguments, stated that the distance from the point where the police officers were located during surveillance of the defendant to the point where the defendant was standing at that time was 600 feet.

I

The defendant first claims as error the exclusion of the answer of one of the arresting officers to the question of whether the defendant, at the time of his arrest, had denied ownership of the narcotics in the bag. The defendant claimed that the testimony was relevant to show his state of mind because intent was an element of the crime with which he was charged.

The statement in question was excluded by the court on the ground that it was inadmissible hearsay. The defendant argued that it was admissible under the state of mind exception to the hearsay rule because it was relevant to the question of knowledge of the presence of the drugs in the bag as well as to his intent.

A defendant’s denial of guilt upon being accused and arrested is obviously self-serving. An out-of-court statement denying guilt, therefore, is not admissible if offered for its truth. State v. McDowell, 179 Conn. 121, 125, 425 A.2d 935 (1979); State v. Savage, 161 Conn. 445, 448, 290 A.2d 221 (1971); State v. Carnegie, 158 Conn. 264, 272, 259 A.2d 628, cert. denied, 396 U.S. 992, 90 S. Ct. 488, 24 L. Ed. 2d 455 (1969). Such a statement offered, however, to show a defendant’s state of mind prior to or during the commission of a crime may be admissible under the state of mind exception to the hearsay rule. 6 J. Wigmore, Evidence (Chadbourne Rev.) § 1732. An out-of-court statement made after the completion of a criminal,'act is not admissible under the state of mind exception as to the intent or motive underlying that completed act. Id.; see also General Motors Acceptance Corporation v. Capitol Garage, Inc., 154 Conn. 593, 227 A.2d 548 (1967). To be admissible under the state of mind exception, the statement must also have been made in a natural manner, in good faith and without apparent motive to falsify. General Motors Acceptance Corporation v. Capitol Garage, Inc., supra; 6 J. Wigmore, Evidence, supra.

The defendant relies on State v. Silveira, 198 Conn. 454, 474, 503 A.2d 599 (1986), which held that direct testimony of the defendant about a statement of another, although self-serving, is admissible if not offered for its truth but for its effect on the defendant’s state of mind. Here, however, the defendant sought to introduce into evidence, through the testimony of a police officer, his own out-of-court statement denying guilt after the alleged crime had occurred, and at the time of being arrested by the police on a serious drug charge. It was temporally unrelated to the defendant’s state of mind prior to or during the alleged crime. There is a difference between a statement relating to the effect on the state of mind prior to or during the commission of a crime, and a denial of the crime after the events constituting the crime have ended. The statement here was obviously self-serving and made in the presence of a clear motive to falsify, and was inadmissible under the state of mind exception to the hearsay rule.

Although the defendant objected to the exclusion of his declaration denying guilt on evidentiary grounds, he did not do so on the constitutional ground he now asserts, the denial of his right to present a defense. “Whether a trial court’s erroneous restriction of a defendant’s or defense witness’s testimony in a criminal trial deprives a defendant of his due process right to present a defense is a question that must be resolved on a case by case basis.” State v. Jones, 205 Conn. 723, 731, 535 A.2d 808 (1988). Here, it was not the direct testimony of a defense witness but the testimony that might have been elicited on cross-examination of a prosecution witness, during the presentation of the state’s case, that was restricted. Furthermore, there was no erroneous exclusion of evidence. The court excluded the statement in conformity with the rules of evidence and denied the defendant neither an opportunity to present a defense nor his right to a fair trial.

II

The defendant next claims that the court’s denial of his request for the jury to view the scene from the point of surveillance constituted an abuse of discretion. The decision as to whether to permit a jury to view the scene of the crime is within the sound discretion of the trial court. Dickson v. Yale University, 141 Conn. 250, 255, 105 A.2d 463 (1954); State v. Flynn, 14 Conn. App. 10, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). The court should consider whether viewing the scene is necessary or important so that the jury may clearly understand the issues and properly apply the evidence. O’Connor v. Dory Corporation, 174 Conn. 65, 71, 381 A.2d 559 (1977); State v. Flynn, supra.

Here, our review indicates that there was sufficient evidence before the jury in the form of testimony, a map, a videotape and photographs. A first-hand view of the scene was cumulative and neither necessary nor important to obtain a clearer understanding of the issues or the evidence. The court did not abuse its discretion by denying the defendant’s request.

Ill

Finally, the defendant claims that the court erred in failing to give to the jury a requested instruction to the effect that mere acceptance of a package containing narcotics is an insufficient basis from which to infer knowledge of its contents. “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. A refusal to charge in the exact words of a request will not constitute error if the requested charge is given in substance.” State v. Casey, 201 Conn. 174, 178, 513 A.2d 1183 (1986). The defendant concedes that the court instructed the jury as to the requirement of a knowing possession of narcotics and that such knowledge had to relate to both the presence and the narcotic character of the substance.

We conclude that the instructions as given, taken as a whole, provided the jury with a clear explanation of the elements of the crime charged and afforded the jury proper guidance for its determination as to whether those elements were proved. See State v. Thompson, 20 Conn. App. 290, 293, 567 A.2d 837 (1989). While the requested instruction was a correct statement of the law, it was not necessary that it be included verbatim in the court’s instructions to the jury.

There is no error.

In this opinion the other judges concurred.

      A statement that is made out-of-court and that is favorable to the interest of the declarant is considered “self-serving.” 29 Am. Jur. 2d, Evidence §621.


source: Caselaw Access Project

author: Daly, J.

license: Public Domain

text:
    State of Connecticut v. Glen Clinkscales
    (7860)
    Daly, Norcott and Foti, Js.
    Argued December 11, 1989
    decision released May 8, 1990

      Jeffrey L. Fisher, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom were James Clark, assistant state’s attorney, and, on the brief, MichaelDearington, state’s attorney, for the appellee (state).
   Daly, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes § 53a-70 (a), assault in the third degree in violation of General Statutes § 53a-61, and kidnapping in the second degree in violation of General Statutes § 53a-94. The sole issue on appeal is whether the trial court erred in granting the state’s motion in limine excluding evidence of the victim’s prior sexual history, on the basis that such evidence was inadmissible pursuant to General Statutes § 54-86f (rape shield statute). We find no error.

The jury could reasonably have found the following facts. On August 22,1987, at approximately 9 a.m., the victim was observed in the parking lot of a beauty salon (Uppercuts) located two doors from radio station WNHC, which is located near the intersection of College Street and Frontage Road in New Haven. After Barbara Gagnon, an employee of Uppercuts, entered the beauty salon, the victim knocked on the door and asked how she could get into the radio station. Gag-non informed her that the station was not yet open, but that she could wait at the front door or on the back porch steps. The victim, who had taken heroin and cocaine at 6 a.m. that morning, was homeless and wanted to talk to a reporter about her plight. She knocked at the front door of WNHC and, when no one answered, she began to cry. The defendant, who appeared to have been in a fight, was walking along College Street and offered to help the victim, but left when the victim did not respond.

Subsequently, a disc jockey at WNHC opened the door and spoke with the victim. He indicated that no one was available to talk to her at the time and closed the door. The victim persisted and the disc jockey opened the door again, whereupon the victim repeated her story. The defendant walked to the door and indicated that he, too, had no money and wanted to speak to someone. The disc jockey repeated that no one was available to talk to them and closed the door.

The victim went to the back porch of the radio station and waited. The defendant reappeared and offered the victim an “easy way to make money.” The defendant left when the victim said “No.” The defendant reappeared a third time and again offered her money. At this time, she said, “I’m no hooker, you know. I don’t want your money, thank you.” Gagnon observed both the defendant and the victim at that time.

The defendant left, then returned and punched the victim in the face when she told him to leave. The defendant then pulled the victim off the porch while she struggled. Gagnon heard the victim scream. The defendant got the victim in a “headlock” and pulled her across the parking lot to a garage. At this time, Gagnon observed slashing movements of a shiny object held by the defendant and blood on the victim’s dress. These slashing movements resulted in a four inch laceration that required stitches. Ernes Yanavich, another employee at Uppercuts, testified that he saw the defendant and the victim argue and that the defendant had pulled the victim so hard that he lifted her out of her shoes and dragged her toward the garage. The police were called. When they arrived, they heard the victim screaming and saw her run out of the garage. The defendant was then arrested.

The state filed a motion in limine to preclude the defendant from presenting evidence that the victim is or has been a prostitute, citing as authority the rape shield statute. The defendant countered that evidence of the victim’s prior sexual history was admissible under several exceptions to the rape shield statute. His offer of proof consisted of his testimony, evidence that the victim had a 1985 conviction for prostitution and had been arrested three times for disorderly conduct, and the testimony of a New Haven police officer as to the underlying facts of the disorderly conduct arrests (proffered evidence).

The defendant testified that he paid the victim $20 in exchange for sexual services but that she did not go with him right away. He testified that he then became impatient because the victim already had his money, and that he told her that he did not want to wait any longer. He testified that at this point the victim denied having his money, and he became annoyed and told the victim either to perform as promised or to give him his money back. The defendant admitted that during this exchange of words a struggle ensued and he grabbed the victim by the arm and pulled at her. He further testified that the victim finally agreed to go with him into a garage behind the radio station, and that, in the garage, they engaged in consensual sexual intercourse. The defendant testified that, thereafter, the victim stole $10 from his back pocket and ran away. The defendant also testified that he had been aware that the victim was a prostitute because he had seen her soliciting.

The trial court granted the state’s motion in limine, the defendant was convicted and this appeal followed. On appeal, the defendant claims that the trial court erred in excluding his proffered evidence because it was admissible under subdivisions (2) and (4) of the rape shield statute.

I

The defendant first claims that the trial court erred in excluding his proffered evidence to impeach the credibility of the victim. We do not agree.

As a preliminary matter, we must determine whether the victim placed her prior sexual conduct in issue during her direct examination, a requirement under § 54-86f (2) that must be satisfied before evidence of a victim’s prior sexual conduct is admissible to question hér credibility. The defendant claims that the victim placed her prior sexual history in issue because during the victim’s testimony as to how the incident occurred, she stated that she responded to the defendant’s persistent advances to offer her “money” and “an easy way to make money” by saying, “I’m no hooker, you know. I don’t want your money, thank you. . . . I have something here that I’m really trying to do that’s important. I’m here to meet a reporter; he’s going to come shortly.”

We disagree with the defendant’s claim that this testimony opened the door to allow further inquiry as to her prior sexual conduct, as required under § 54-86f (2). See State v. Tracy, 14 Conn. App. 451, 456, 541 A.2d 132, cert. denied, 208 Conn. 811, 545 A.2d 1108 (1988). The victim’s statement to the defendant that she was “no hooker” was at best an appropriate spontaneous response to the defendant’s persistent advances. Her recitation of that statement before the jury was clearly not testimony of her prior sexual history but rather part of her account of what occurred that day. The trial court was not in error in excluding the defendant’s proffered evidence on this ground.

Even if we accept the defendant’s argument that the victim’s statement placed her prior sexual conduct in issue, the court correctly determined that his proffered evidence was not relevant to the victim’s credibility as a witness. “ ‘ “It is a reasonable exercise of judicial discretion to exclude . . . evidence the relevancy of which appears to be so slight and inconsequential that to admit it would distract attention which should be concentrated on vital issues of the case. . . .’’’’’(Citations omitted.) State v. Butler, 11 Conn. App. 673, 683, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987). “The credibility of witnesses is principally tested by cross-examination.” Id.

The defendant claims that his proffered evidence was relevant to her credibility as a witness because it was relevant to a substantive or material issue in the case, namely, whether the victim consented to engage in sexual intercourse with the defendant. See Demers v. State, 209 Conn. 143, 156-57, 547 A.2d 28 (1988). For the reasons discussed in the next section, we find that the defendant’s proffered evidence was not relevant to a material issue and that the cross-examination of the victim was sufficient to enable the jurors to form opinions as to her credibility. See State v. Butler, supra, 684.

II

The defendant next claims that evidence of the victim’s prior sexual history is admissible under General Statutes § 54-86f (4), which provides that evidence of the sexual conduct of the victim may be admissible where such evidence is “so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.” He claims that the exclusion of his proffered evidence violated his rights under the sixth amendment to the United States constitution and article first, § 8, of the Connecticut constitution. Specifically, he argues that the exclusion of the proffered evidence unduly restricted his cross-examination of the victim and abridged his right to confront the witnesses against him. Again, we do not agree.

“The constitutional standard for cross-examination is satisfied when defense counsel is allowed to expose to the jury facts from which the jurors could appropriately draw inferences as to the witness’ reliability.” State v. Butler, supra, 683-84; see also State v. Cassidy, 3 Conn. App. 374, 381, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985). The defendant’s cross-examination of the victim as to the events surrounding the incident was detailed and unrestricted. For example, the jurors were exposed to the fact that the victim had taken heroin and cocaine a few hours before the incident. Furthermore, the court permitted inquiry into the victim’s reasons for stating that she was not a prostitute, even though the accuracy of her statement could not be challenged. The defendant, however, chose not to inquire. Finally, the defendant was permitted to impeach the victim’s credibility by exposing to the jury the fact that the victim had been convicted of a felony in 1983 and again in 1986, was convicted of possession of a narcotic substance in 1985 and 1986, and was on probation at the time she testified. The cross-examination of the victim was sufficient to enable the jurors to form opinions as to the victim’s reliability.

The defendant, relying on. Demers, also claims that the exclusion of his proffered evidence violated his sixth amendment right to confront the witnesses against him and that this resulted in damaging his ability to establish a defense of consent.

In Demers v. State, supra, the Supreme Court upheld the trial court’s decision to grant the defendants a new trial because the state failed to disclose to the defendants, at or prior to trial, the existence of exculpatory information concerning the contents of an arrest report setting forth the circumstances underlying the victim’s arrest for prostitution ten months before the incident at issue. In that case, the evidence in the police report was deemed admissible under § 54-86f (4) of the rape shield statute because its exclusion would have violated the defendants’ sixth amendment rights under the United States constitution to confront the witnesses against them. Demers v. State, supra, 160.

We do not agree with the defendant’s argument that Demers is controlling here. In State v. Mastropetre, 175 Conn. 512, 516, 400 A.2d 276 (1978), our Supreme Court stated that where forcible compulsion is proven beyond a reasonable doubt, a lack of consent is implicit. In the present case, the defendant’s own account of the events leading up to the sexual assault confirms the fact that he applied force to get the victim into the garage. It was not until after force was applied that any alleged consent occurred. Furthermore, two eyewitnesses testified to seeing the victim being slashed at with a shiny object and dragged toward the garage with such force that she was lifted out of her shoes. The defendant’s argument that he was justified in applying force because he paid the victim money does not even remotely suggest that the defense of consent was raised.

Moreover, Demers is clearly distinguishable from the present case. In Demers, the court determined that the underlying factual circumstances leading to the victim’s arrest for prostitution ten months before the incident were so relevant, probative and highly material under the circumstances of that case that such evidence would have been admissible under General Statutes § 54-86f (4). Demers v. State, supra, 159.

The underlying factual circumstances of the arrest report in Demers showed that the victim had been arrested for prostitution ten months before she was allegedly sexually assaulted, after a male walked up to an undercover police officer in an unmarked car, and asked the officer if he wanted to pay for the sexual services of a woman. When the officer agreed, the woman, identified as the victim in the later incident, walked over to the car, opened the door and, upon recognizing the person in the car to be a police officer, tried to escape but was subsequently apprehended. Similarly, the defendants in Demers claimed that the victim had walked up to their car in the same city in which she had been arrested, propositioned them to engage in sex for money and that this consensual sex later occurred.

In the present case, the defendant presented testimony of a New Haven police officer who testified to the facts underlying the victim’s three previous arrests for disorderly conduct. As to these disorderly conduct arrests, the officer indicated that the victim had been arrested on three occasions for disorderly conduct, not prostitution, on the basis of the victim’s walking up to cars and impeding traffic. The officer testified that her conduct of going into the street, stopping cars at random and accepting rides was consistent with that of a prostitute, but he also indicated that the only basis for these arrests was impeding vehicular traffic. Unlike Demers, there is no factual similarity between the underlying facts of this victim’s previous arrests for disorderly conduct and the facts surrounding the incident at hand. See State v. Butler, supra, 682.

Even if we assume the defendant’s version to be true, the defendant admitted that he approached the victim and offered her money to engage in sexual activity; the victim did not solicit him. Furthermore, the victim was sitting at the radio station waiting to speak to people; she was not in the middle of the street walking up to cars. The defendant failed to show that the victim’s prior sexual history was relevant to establish his alleged defense of consent.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 54-86f provides in relevant part: “In any prosecution for sexual assault under sections 53a-70 ... no evidence of the sexual conduct of the victim may be admissible unless such evidence is . . . (2) offered by the defendant on the issue of credibility of the victim, provided the victim has testifed on direct examination as to his or her sexual conduct ... or (4) otherwise so relevant and material to a critical issue in the case that excluding it would violate the defendant’s constitutional rights.”

       The defendant also argues that the court “did not make a finding that the prejudicial impact of the proffered evidence outweighed its probative value” and thus did not properly comply with General Statutes § 54-86f. General Statutes § 54-86f “provides for a hearing, out of the presence of the jury, to determine whether the probative value of the evidence outweighs its prejudicial effect on the victim.” State v. Butler, 11 Conn. App. 673, 681, 529 A.2d 219, cert. denied, 205 Conn. 806, 531 A.2d 938 (1987). The defendant was afforded this hearing and the court found that the proffered evidence was inadmissible because the victim did not “open the door” to her prior sexual history and because the evidence was not relevant. The court implicitly found that the probative value of the evidence was outweighed by its prejudicial effect when it determined that the evidence was inadmissible. See id., 682.

       The defendant has failed to provide any analysis to distinguish or to amplify his state rights on this issue. We decline to undertake such an analysis. See State v. McNellis, 15 Conn. App. 416, 420 n.2, 546 A.2d 292, cert. denied, 209 Conn. 809, 548 A.2d 441 (1988).

       We note that Demers v. State, 209 Conn. 143, 547 A.2d 28 (1988), was decided after the trial court’s ruling on the motion in limine.

       We note that the court in State v. Mastropetre, 175 Conn. 512, 516, 400 A.2d 276 (1978), interpreted the definition of “Forcible compulsion” then contained in General Statutes (Rev. to 1975) § 53a-65 (8), to apply to rape in the first degree, then contained in General Statutes (Rev. to 1975) § 53a-72. These two sections have been repealed but the present definition of “Use of force” contained in General Statutes § 53a-65 (7) is substantially similar to the previous language of § 53a-65 (8). Compare § 53a-65 (8) (now repealed) which defined “Forcible compulsion” to mean “physical force that overcomes earnest resistance; or a threat, express or implied, that places a person in fear of immediate death or serious physical injury to himself or another person” to “Use of force” in § 53a-65 (7): “(A) use of a dangerous instrument; or (B) use of actual physical force or violence or superior physical strength against the victim.”


author: Mulcahy, J.

text:
    Robert L. Marandino et al. v. Planning and Zoning Commission of the Town of Greenwich
    (6889)
    Argued January 18
    decision released May 8, 1990

      JohnH. Reilly, assistant town attorney, for the appellant (defendant).

      Harry T. Constas, for the appellees (plaintiffs).
   Mulcahy, J.

The defendant planning and zoning commission appeals from the judgment of the trial court sustaining the plaintiffs’ appeal from the denial of their application for site plan approval for the construction of an office building on Route 1 in Greenwich. The dis-positive issue is whether the trial court erred in holding that the plaintiffs’ application was approved by operation of law, pursuant to General Statutes § 8-7d (b), because the commission failed to render a decision thereon within sixty-five days of the date of the Superior Court’s remand order. We find no error.

The facts are not in dispute. On February 12, 1985, the plaintiffs filed an application for site plan approval as owners of real property known as 1297 E. Putnam Avenue (Route 1), Greenwich. Following a hearing held on September 4,1985, the application was denied “without prejudice.” The plaintiffs appealed to the Superior Court from the denial of their application and, on January 15, 1987, the trial court sustained the appeal and remanded the matter. The commission conducted a second hearing and, on April 7,1987, it again denied the plaintiffs’ application, this time noting that the plaintiffs’ proposal did not conform to the amendments to the zoning regulations adopted in June and September, 1986. The plaintiffs appealed a second time to the Superior Court, claiming that the commission improperly applied the new zoning regulations, and that the application had been approved by operation of law due to the commission’s failure to render its decision within sixty-five days of the January 15,1987 remand. The trial court sustained the appeal on the basis of the commission’s noncompliance with the sixty-five day limitation imposed by § 8-7d (b). Since the plaintiffs’ application had been approved by operation of law, the trial court ruled that it was unnecessary to consider the effect of the amendments to the zoning regulations.

The defendant claims that the trial court erred in holding that the sixty-five day countdown under § 8-7d (b) started on January 15,1987, the date of entry of judgment in the original appeal. The defendant argues that this countdown should have begun twenty days after that date because the defendant had twenty days in which to petition the Appellate Court to certify the case for further review. In other words, the defendant urges us to enlarge the statutory sixty-five day period by an additional twenty days. Such result would make timely the commission’s denial of the plaintiffs’ application.

We agree with the trial court that the entry of judgment triggered the sixty-five day statutory period. When the Superior Court remands a zoning appeal with direction that the zoning commission reconsider the plaintiff’s application and the commission, as in this case, does not petition for appellate review of that decision, the entry of the Superior Court’s judgment triggers the running of the sixty-five day period under § 8-7d (b). Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 452, 440 A.2d 163 (1981); see also Pelliteri Chevrolet, Inc. v. Zoning Board of Appeals, 21 Conn. App. 347, 573 A.2d 347 (1990).

There is no error.

In this opinion the other judges concurred.

       General Statutes § 8-7d (b) provides: “Whenever the approval of a site plan is the only requirement to be met or remaining to be met under the zoning regulations for a proposed building, use or structure, a decision on an application for approval of such site plan shall be rendered within sixty-five days after receipt of such site plan. The applicant may consent to one or more extensions of such period, provided the total period of any such extension or extensions shall not exceed two further sixty-five-day periods, or may withdraw such plan.”

       The application for preliminary site plan approval lists Robert L. Marandino as the property owner, and R.L.M., Inc., as the name of the project.

       The minutes of the April 7,1987 commission meeting set forth in pertinent part:

        “Whereas, the Planning and Zoning Commission held a Public Hearing on March 24, 1987;
      “Whereas, the Commission considered all testimony presented at the hearing;
      “Whereas, the Commission noted that the new zoning regulations effecting the LB and LBR commerical zones were adopted in September of 1986 after an extensive Town-wide study of the two local business zones. The study was conducted with the assistance of outside consultants and resulted in the presentation of a comprehensive report dated May 2, 1986. In response to the findings of that report the Commission adopted regulation for Town-wide changes in the two commercial zones;
      “Whereas, the Commission in reviewing the project observed that the proposal did not conform to the current ‘Building Zone Regulations, Greenwich, Connecticut’ as noted by the Zoning Enforcement Officer in his review sheet dated 3/20/87 ....
      “Therefore Be It Resolved, that the application of Robert L. Marandino - R.L.M., Inc. for a special permit and preliminary site plan ... at 1297 E. Putnam Avenue in the LB zone pursuant to Section 6-17 and Section 6-101 of the ‘Building Zone Regulations, Greenwich, Connecticut’ on remand from the court is hereby denied. . . .
      “The resolution was unanimously adopted. . . .”

       General Statutes § 8-8 (g) provides that review of a zoning decision beyond the Superior Court level is by certification only. Practice Book § 2030 provides: “A petition for certification shall be filed within twenty days from the issuance of notice of the decision of the trial court.”


author: Borden, J.

text:
    Stanley Kendzierski v. Loretta Goodson
    (7256)
    Borden, Spallone and Norcott, Js.

      Argued December 19, 1989
    decision released May 8, 1990

      Shelley White, with whom, on the brief, was Charisse E. Hutton, for the appellant (defendant).

      George R. Temple, with whom, on the brief, was Sean Orion Lebas, for the appellee (plaintiff).
   Borden, J.

In this summary process action, the defendant tenant appeals from the judgment awarding possession to the plaintiff landlord. The defendant claims that the court erred in failing to require the plaintiff to demonstrate a good faith desire for a higher rent sufficient to constitute good cause for purposes of terminating the defendant’s federally subsidized § 8 tenancy. We find no error.

In 1980, the plaintiff rented a four bedroom apartment in Ansonia to the defendant for a monthly rent of $260, which had increased to $293 per month by the time of this action. In 1985, the plaintiff and the defendant entered the § 8 federal rent subsidy program, pursuant to 42 U.S.C. § 1437f and 24 C.F.R., ch. VIII. At that time, the parties executed a written lease for the rental of the apartment. An accompanying § 8 housing assistance payments contract was executed between the plaintiff and the Ansonia housing authority (authority). The lease, which began on July 1,1985, had no set termination date. Instead, it provided for termination according to the provisions for terminating § 8 tenancies under the applicable federal statutes and regulations.

Under the § 8 program, the total rent for a particular unit is based on a schedule of fair market rents for the locality; 24 C.F.R. § 882.106; and a landlord’s termination rights are subject to 42 U.S.C. § 1437f and 24 C.F.R. § 882.215. A landlord may terminate a § 8 tenancy for various reasons that constitute “good cause”; 24 C.F.R. § 882.215 (c) (1) (iii); including a “desire to rent the unit at a higher rental.” 24 C.F.R. § 882.215 (c) (2).

The plaintiff brought this action to terminate the defendant’s tenancy on the ground that he desired to rent the apartment at a higher rent. The trial court found that, although the apartment was classified as a four bedroom unit under the § 8 program, the defendant could receive a rent subsidy only on the basis of a one bedroom apartment because she was a single person who lived alone. There was evidence that the fair rental value of the apartment was between $600 and $700 per month. The court also found that, under the § 8 program, the rent subsidy was $420 for a one bedroom apartment, and $668 for a four bedroom apartment, and that “[t]he evidence of the plaintiffs desire for a higher rent was overwhelming.” The court rendered judgment for the plaintiff. This appeal followed.

The defendant’s claim that the court erred by rendering judgment for the plaintiff is in two parts: (1) the court ignored the federal good cause requirement for termination; and (2) the plaintiff failed to demonstrate that his stated desire for a higher rent was held in “good faith.” We disagree.

We reject the defendant’s argument that the court ignored the good cause requirement for termination. The principal issue at trial was whether the plaintiff met the good cause requirement as provided in the lease and the federal regulation. That issue was vigorously argued throughout the trial and in the oral arguments following the evidence. The court rendered judgment orally from the bench after the oral arguments, and filed an articulation of its ruling thereafter. Although the court did not explicitly use the term “good cause,” it is clear, from the context of the court’s ruling and from its specific finding that the plaintiff proved a desire for a higher rent, that its decision was based on the good cause requirement.

The defendant’s argument in this respect is based on several remarks made by the court in the course of certain colloquies with the defendant’s counsel during the proceedings. Those comments arguably indicated that the court erroneously perceived the legal status between the parties to be that of a conventional landlord-tenant relationship unencumbered by the additional rights and duties arising out of § 8. The defendant has not demonstrated, however, that any such misperception formed the basis of the court’s ultimate decision.

With respect to the defendant’s second argument, namely, that the plaintiff failed to prove a “good faith” desire for a higher rent, we agree that 24 C.F.R. § 882.215 (c) (1) (iii) requires the landlord’s desire for a higher rent to be held in good faith. In this case, however, the record supports the court’s implied finding that the plaintiff established good faith.

In Park Terrace Associates Limited Partnership v. Taylor, 9 Conn. App. 477, 519 A.2d 1225 (1987), we assumed good faith to be a component of a § 8 landlord’s desire for a higher rent pursuant to 24 C.F.R. § 882.215 (c) (2) (iii). In upholding the trial court’s conclusion that federal law had been satisfied, we stated that “there was ample evidence to support the conclusion that the termination of the tenancy was motivated by a good faith desire to rent the unit at a higher rent.” (Emphasis added.) Id., 480. This assumption stems from common sense. The “good cause” requirement for termination derives from the federal statute; see footnote 1, supra; and under the federal regulation implementing that statutory standard, the landlord’s desire for a higher rent is one of the examples constituting good cause. See footnote 2, supra. It would be an aberrant reading, indeed, of the statutory and regulatory term, “good cause,” if it were held to indicate a desire for a higher rent entertained without good faith or in bad faith.

This conclusion is buttressed by the regulatory commentary to 24 C.F.R. § 882.215 (c), and by a decision of at least one other appellate court that has specifically addressed this issue. The regulatory history of the good cause requirement for termination refers as follows to the congressional conference report on the 1981 amendments to the § 8 program: “It is not the intention of the Conferees that these statutory provisions [on termination of tenancy] govern the relationship between a landlord and a tenant after a landlord has, in good faith, terminated his participation in the sec. 8 existing program. (H.R. Rep. No. 97-208, 97th Cong., 1st Sess. 695 (1981), reprinted in 1981U. S. Code Cong, and Ad. News, 1010, 1053-54).” (Emphasis in original.) 49 Fed. Reg. 12234 (1984). The same regulatory history states that “[a]n owner who is withdrawing all units in good faith from participation in the program . . . has ‘other good cause’ for termination of tenancy.” (Emphasis added.) Id. The regulatory history also refers to the need for explicit regulatory assurance “that legitimate owner concerns will be recognized as grounds for termination of tenancy.” (Emphasis added.) Id., 12233. Furthermore, in Templeton Arms v. Feins, 220 N. J. Super. 1, 16-17, 531 A.2d 361 (1987), the Appellate Division of the New Jersey Superior Court specifically addressed the relationship between “good cause” and “good faith” in the context of termination of a § 8 tenancy. “The good cause standard ... is flexible, taking its shape from the particular facts to which it is applied. Good cause is distinct from good faith, although good faith is relevant in evaluating good cause.” Id., 21.

In common usage, the term “good faith” has “ ‘a well defined and generally understood meaning, being ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one’s duty or obligation.’ 35 C. J.S. 488 and cases cited. It has been well defined as meaning ‘An honest intention to abstain from taking an unconscientious advantage of another, even through the forms or technicalities of law, together with an absence of all information or belief of facts which would render the transaction unconscientious.’ ” Phillipe v. Thomas, 3 Conn. App. 471, 474-75, 489 A.2d 1056 (1985), quoting Snyder v. Reshenk, 131 Conn. 252, 257, 38 A.2d 803 (1944). It is a subjective standard of honesty of fact in the conduct or transaction concerned, taking into account the person’s state of mind, actual knowledge and motives. Id., 475. Whether good faith exists is a question of fact to be determined from all the circumstances. See Phillipe v. Thomas, supra, 475-76; Templeton Arms v. Feins, supra.

Applying these standards, we conclude that the court impliedly found that the plaintiff had a good faith desire for a higher rent. Although the court did not explicitly state that the plaintiff’s desire for a higher rate was held in good faith, it did describe the evidence of that desire as “overwhelming.” Furthermore, as disclosed by our reading of the trial record, the plaintiff did not dispute the defendant’s claim that a showing of a good faith desire for a higher rent was required; the plaintiff argued that the evidence established such a desire. In the light of this posture of the case as tried, we read the court’s articulation as containing an implicit finding that there was a good faith desire by the plaintiff for a rent higher than was afforded under the § 8 program.

That finding was not clearly erroneous. As the defendant argues, there was evidence that would have justified a finding that the plaintiff’s stated desire for a higher rent was pretextual, was not held in good faith, and was motivated solely by a desire to withdraw the defendant’s apartment from the § 8 program without regard to the amount of rent. There was also evidence, however, from which the court could, and did, find that the defendant desired in good faith to rent the defendant’s apartment for more money than the § 8 program afforded.

There is no error.

In this opinion the other judges concurred.

       Section 8 of the United States Housing Act of 1937, as amended in 1974; 42 U.S.C. § 1437f; established the housing assistance payments program known as the Section 8 Existing Housing Program, which provides for various types of assisted housing. The purpose of the Section 8 program is to “[aid] lower-income families in obtaining a decent place to live and . . . [to promote] economically mixed housing . . . .” 42 U.S.C. § 1437f (a).

       42 U.S.C. § 1437f (d) (1) (B) (ii) provides that “[c]ontracts to make assistance payments entered into by a public housing agency with an owner of existing housing units shall provide (with respect to any unit) that—the owner shall not terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State or local law, or for other good cause.”

       24 C.F.R. § 882.215 (c) (2) provides in pertinent part that “[t]he following are some examples of ‘other good cause’ for termination of tenancy by the Owner: ... a business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, desire to rent the unit at a higher rental).”


author: Spallone, J.

text:
    State of Connecticut v. Marie G. Mazzetta
    (5886)
    Dupont, C. J., Spallone and O’Connell, Js.
    Argued October 3, 1989
    decision released May 8, 1990

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Juliett Crawford, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a jury trial, of the crime of larceny in the third degree in violation of General Statutes § 53a-124 (a) (l). She claims that the trial court erred (1) in convicting her without sufficient evidence of guilt, (2) in denying her various requests for discovery, adequate notice and continuances, and (3) in improperly commenting on the evidence in its jury instructions. We find no error.

The jury reasonably could have found the following facts. From September 12, 1985, to January 8, 1986, the defendant was employed by a chain of newsstands as the manager of its New Haven store. She usually opened the store on weekdays and occasionally closed the store in the evenings. As part of her duties, she operated the cash register, reviewed and coordinated the daily register tapes and summary sales reports, and made bank deposits of cash.

Although December is the chain’s busiest month, the gross receipts for December, 1985, from the New Haven store were unexpectedly low. After investigating this anomaly, the chain’s bookkeeper reported to the general manager, David Elden, that the summary sales reports from the New Haven store exhibited gaps in the sequential numbering of sales transactions and daily sales totals. These gaps could have resulted only from a manipulation of the cash register tapes at the start or close of daily business. Individual sales had been rung up on the cash register but the leading or trailing record of transactions had been removed from the register’s paper rolls. The cash receipts from these transactions were presumably also missing.

On January 8,1986, Elden called the defendant and informed her that he wished to discuss “problems” with the cash register tapes. The defendant opened the store the next morning but left early, claiming that she had injured her back. For four days she refused to take telephone calls from Elden or store employees, and Elden finally reported his information to the police. The defendant was subsequently arrested, tried and convicted of the crime of larceny in the third degree for an embezzlement occurring between November 7 and December 27, 1985. This appeal followed.

I

The defendant first claims that she was convicted on evidence insufficient to establish that she was the embezzler or that the amount of the loss exceeded $1000. We disagree. The standard of review with respect to a sufficiency of the evidence claim has been stated countless times. The issue “ ‘is whether the [jury] could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify the verdict of guilty beyond a reasonable doubt.’ State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981).” State v. Steinmann, 20 Conn. App. 599, 602-603, 569 A.2d 557 (1990). The evidence must be viewed in the light most favorable to sustaining the verdict. State v. Kelly, 208 Conn. 365, 386, 545 A.2d 1048 (1988); State v. Ruth, 16 Conn. App. 148, 153-54, 547 A.2d 548 (1988), cert. denied, 209 Conn. 827, 522 A.2d 434 (1989).

Although this case was wholly dependent on circumstantial evidence, such evidence is as probative as direct evidence; State v. Kelly, supra; and was sufficient to convict the defendant. The jury reasonably could have concluded that the defendant had the best opportunity to commit the crime because she was the store’s manager and was, as a rule, the only employee who worked alone in the shop. See State v. Villano, 176 Conn. 301, 303, 407 A.2d 969 (1978) (opportunity is probative on issue of identity); State v. Bettini, 11 Conn. App. 684, 688, 528 A.2d 1180, cert. denied, 205 Conn. 804, 531 A.2d 937 (1987). Elden and a store employee testified that before anyone explained the process, the defendant exhibited knowledge of how the register tapes had been manipulated. As manager, the defendant was responsible for checking the daily summary sales records but she did not report the disparities between sales volume and cash receipts nor did she report the missing transaction numbers. While a suspect’s knowledge that a crime has been committed does not ordinarily justify an inference of guilt; State v. Villano, supra, 303-304; the defendant’s failure to report such discrepancies, coupled with her knowledge of how the thefts were concealed, justified an inference that she committed this crime. Finally, the jury reasonably could have concluded that the defendant’s abrupt departure from the store on the morning Elden was to ask about the register tapes and her avoidance of further contact was evidence of guilt. See State v. Thomas, 205 Conn. 279, 286-87, 533 A.2d 553 (1987) (consciousness of guilt manifested by sudden reluctance to communicate with victim’s family).

There was also sufficient evidence from which the jury reasonably could conclude that the value of the loss exceeded $1000. Evidence was introduced that the victim was reimbursed by its insurance company for a loss of $3256.87. See State v. Taylor, 196 Conn. 225, 229, 492 A.2d 155 (1985) (insurance proceeds are probative of the value of stolen property). Elden testified that there were 1563 missing transactions and that the average sale per transaction was $2.24. The defendant’s expert acknowledged that the method used to calculate this average sale figure was an acceptable accounting practice. The defendant now argues that this proof of loss must be discounted because the calculation averaged sales statistics from November 1, 1985, through January 6,1986, and therefore included a sixteen day period outside the time period alleged in the information. The defendant’s implication, however, that the average sale per transaction figure would be lower if the sixteen day period was excluded, is unsupported. The jury reasonably could have reached the opposite conclusion, inferring that postChristmas daily receipts would be sharply lower and would have therefore decreased the average dollar per sale figure. The jury was instructed, in accordance with the defendant’s request, that the value element of the crime must be proved for the period between November 7 and December 27, 1985. The loss exceeded $1000 if the jury accepted that as few as one third of the missing transactions, at $2.24 per transaction, occurred within this period.

The inference that the loss exceeded $1000 is further supported by the evidence of the missing daily summary totals because the thefts were concealed by removing from the register tapes records of both the individual transactions and the summary totals. Elden testified that there were thirty-three summary totals missing during the fifty-one day period charged. Upon all the evidence presented, the jury, which is presumed to use its common sense in deliberations; State v. Ruth, supra, 154; could reasonably have concluded that a sufficient number of transactions fell within the period charged and that the loss exceeded $1000.

II

In her second claim of error, the defendant argues that adverse trial court rulings hampered the preparation of her defense. The following facts are relevant to this claim.

On March 26,1986, the defendant entered a plea of not guilty to a short form information alleging a larceny in the second degree, occurring on or about October 12, 1985. She filed a motion on May 8, 1986, for a bill of particulars seeking, inter alia, to know the date and time of the offense. On November 3,1986, the day that jury voir dire began, the state filed a long form information pursuant to Practice Book § 833, encompassing the specifications of the bill of particulars and charging the defendant with larceny in the second degree for losses exceeding $5000 occurring between October 12, 1985, and January 10, 1986. On the next afternoon, November 4, 1986, the state filed a substituted information alleging a larceny in the third degree for losses exceeding $1000, occurring between November 7 and December 27, 1985.

The defendant objected to both filings, claiming that the time frame alleged in the informations was so broad as to prevent her from preparing a defense. She renewed her motion for the extant bill of particulars and submitted a motion for a supplemental bill of particulars. On November 5,1986, the court ruled on the defendant’s discovery motions, denying her request for more specific information on the dates and amount of the larceny. The court also denied the defendant’s request for a continuance during which to analyze the cash register tapes or, alternatively, for copies of the tapes so that she could review the material “after-hours.”

A

The defendant claims that the court erred in permitting the state, during the first two days of trial, to change the crime charged from a theft of more than $5000 occurring on one day to, finally, a theft of more than $1000 occurring over a fifty-one day period. The defendant did not object at trial to the substituted informations nor did she make a motion to dismiss on this ground. She squarely raises the issue for the first time in her reply brief. Nevertheless, because the defendant has a due process right to notice of the charges against her, and because the record is sufficiently complete, we will consider the merits of the claim under the plain error doctrine. See Practice Book § 4185; State v. Roque, 190 Conn. 143, 149-50, 460 A.2d 26 (1983).

The court may permit the state, before or after the start of trial, to file substituted informations to conform to the evidence. Practice Book §§ 623, 624; State v. Secore, 194 Conn. 692, 699, 485 A.2d 1280 (1984); State v. Ramos, 176 Conn. 275, 276, 407 A.2d 952 (1978). This decision is within the court’s sound discretion and is subject to reversal only for an abuse of that discretion. State v. Ramos, supra. A substitute information may not prejudice the defendant’s due process rights. State v. Vaughn, 20 Conn. App. 386, 389-90, 567 A.2d 392 (1989). The defendant must provide a specific showing of prejudice resulting from the state’s delay in providing notice of the charge against which she must defend. State v. Ramos, supra, 279-80; State v. Waterman, 7 Conn. App. 326, 335, 509 A.2d 518, cert. denied, 200 Conn. 807, 512 A.2d 231 (1986).

The grounds for challenging the substitution of informations are few and clearly circumscribed. The defendant here does not claim that the state impermissibly charged her with a different crime; see State v. Jacobowitz, 182 Conn. 585, 590-91, 438 A.2d 792 (1981); nor does she claim that the state altered a material element of the crime; see State v. Adams, 14 Conn. App. 119, 124-25, 539 A.2d 1022 (1988) (date and time of thefts are not material elements of crime of larceny). The defendant contends, rather, that the “enlargement” of the dates and the reduction of the amount created prejudicial surprise, denying her an opportunity to prepare a defense.

This bare assertion of prejudice is not sufficient support for her claim. See State v. Ramos, supra, 279-80; State v. Waterman, supra. Because she offers no argument as to how she was prejudiced, she asks us, in effect, to find that substitute informations encompassing the changes made here are prejudicial per se. This we cannot do. To the contrary, in cases where even radical changes in the facts of the crime charged were made by substitute information, courts have still required a specific demonstration of resulting prejudice in the circumstances of the whole case. See, e.g., State v. Ramos, supra; State v. Waterman, supra.

In State v. Ramos, supra, the defendant claimed prejudicial surprise after the state filed a substitute information changing the date of the alleged rape from April 15 to May 22,1975. Id., 276. Our Supreme Court held that it was “entirely proper for a court to permit an amendment or a substitute information merely to amplify or correct the time of the commission of the offense” on the “well-established rule” that the crime need not be proved on the precise date alleged, Id., 276-77. In State v. Waterman, supra, the state was permitted to file a series of substituted informations. After jury selection began, the short form information alleging larceny in the first degree was replaced by an information alleging that the defendant defrauded a public community of $38,500. Another substituted information reduced the amount of loss to $2000. Id., 331. This court rejected the defendant’s claim of unfair surprise and an inadequate opportunity to prepare a defense.

As in the above cases, the substitute informations in this case did no more than amplify and correct the dates and amount of the thefts to conform to the evidence. Moreover, in both Ramos and Waterman, the courts considered the totality of the circumstances in deciding whether the defendant was surprised by the changes and whether the defense was hampered.

In State v. Ramos, supra, the court noted that the arrest warrant provided notice of the correct date of the rape, and found no prejudice to the defendant arising from the change of dates because the defendant offered no alibi defense for the original date. Id., 278-79. There are numerous cases in which courts have “adverted to sources extrinsic to the specific count or information to determine whether the defendant was sufficiently apprised of the offense charged.” State v. Spigarolo, 210 Conn. 359, 384, 556 A.2d 112, cert. denied, U.S. , 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989); see also State v. Frazier, 194 Conn. 233, 237, 478 A.2d 1013 (1984). Correspondingly, we note that the arrest warrant issued for the defendant alleged an embezzlement during a range of dates between October 12,1985, and January 10,1986, providing her with notice that the crime was not a larceny committed on only one date. We also note that her request in her bill of particulars for the dates of the offense is inconsistent with her claim that she believed the charge to be a theft on a single day.

It is undisputed that the defendant made no offer of an alibi defense for the original date of October 12, 1985, nor did she state that she intended to offer an alibi defense for the new dates. As in Ramos, the defendant avoids an implication that the state’s delay was intentional or due to bad faith. State v. Ramos, supra, 279 n.4. It is significant that the defendant did not seek a continuance to investigate the new facts or to prepare a defense. See id., 279; State v. Waterman, supra, 335. Considering the total circumstances, we conclude that the defendant has failed to demonstrate that she was surprised or prejudiced by the modified informations.

In summary, the defendant’s claim of prejudice from the substitute informations is made in hindsight. Unlike the defendants in Ramos and Waterman, she did not object at trial to the filing of the informations or move to dismiss them. Whatever her view now of the propriety of permitting the state so to change the character of the crime charged, she did not make this argument at the time the informations were filed, or at any time during trial. She did not raise this issue in her motions for judgment of acquittal or for a new trial. Indeed, the defendant did not find that her defense was hindered by the filing of substitute informations until she filed her reply brief. Her claim that she was unfairly surprised, undiscovered and unasserted until months after the allegedly surprising events, is unpersuasive.

Given the defendant’s own tardiness in finding this claim of significance, we cannot say that the court had a duty at trial to recognize the import of claims not made, to bear the defendant’s burden of demonstrating prejudice, or to give a remedy, such as a continuance, the defendant had not sought. Therefore, the court did not err in accepting the substitute informations. If there was any prejudice to the defendant, it flowed not from the filing of the substituted informations, but from the court’s adverse rulings on her motions for more precise information and for time to analyze documents, claims that we review next.

B

The defendant claims that she was prejudiced by the court’s denial of her requests that the state provide more specific times and dates of the thefts and by the denial of her various motions for discovery. She argues that these rulings inhibited her ability to prepare a defense. We do not agree.

A criminal defendant’s rights of due process require the state to inform the defendant of the nature and cause of the charges with sufficient precision to enable her to meet the charges at trial. State v. Spigarolo, supra, 381; State v. Laracuente, 205 Conn. 515, 518, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). Unconditional precision is not required; precision need only be sufficient to enable the defendant to prepare a defense, to avoid surprise and to plead her acquittal or conviction as a bar to further prosecutions. State v. Spigarolo, supra, 383-84.

The. defendant may seek more precise information by moving for a bill of particulars, and she bears the burden of showing why the particulars are necessary to the preparation of her defense. Practice Book §§ 831, 832; State v. Laracuente, supra, 518-19. The court’s ruling upon such a motion is within its sound discretion and will not be reversed without a clear showing of prejudice. State v. Spigarolo, supra, 385.

A defendant cannot merely claim that the pleadings are insufficient; she must show that she was in fact prejudiced in her defense on the merits and must show that substantial injustice resulted from the language of the information. State v. Spigarolo, supra, 382; State v. Vincent, 194 Conn. 198, 205 n.12, 479 A.2d 237 (1984). To establish prejudice, the defendant must demonstrate that more precise information was available to the state; State v. Spigarolo, supra, 386; and that this information was necessary to her defense. Id., 385.

The defendant has done no more than raise “the spectre of prejudice” without demonstrating its impact. State v. Vincent, supra. Upon the renewal of her motion for a bill of particulars on November 3, the court expressly asked the defendant several times to explain how she was prejudiced by the lack of more specific dates, and deferred ruling on the motion to give the defendant time to provide authority for her arguments. After the substitute information was filed on November 4, and after lengthy arguments by counsel, the court denied the defendant’s motion, ruling that the dates of the thefts as alleged were based on the state’s best knowledge and were sufficiently specific.

The state has a duty, within limits, to inform the defendant of the time of the commission of the offense, but it has no duty to disclose information it does not have. State v. Spigarolo, supra, 386. The state need not “ ‘ “choose a particular moment as the time of an offense when the best information available to the state is imprecise.”. . .’ ” (Citations omitted.) Id.

The defendant here has not proved that the state denied her information in its possession. The substitution of a more limited range of dates on November 4 does not prove that the November 3 information was inadequate. See State v. Waterman, supra. It illustrates, rather, that the state, even without being so directed by the court, supplied the defendant with more specific information as it became available. The defendant cannot claim that the second information’s range of dates, from November 7 to December 27, 1985, in any way varied from the evidence introduced at trial. See State v. Bowman, 3 Conn. App. 148, 154-55, 485 A.2d 1343 (1985). The evidence presented at trial indicates that there were missing sales transactions on nearly every date from November 7 to December 27, 1985. The dates charged in the information, therefore, were as specific as the dates the defendant moved to be supplied.

Moreover, the defendant did not prove that more precise dates were necessary to her defense. The defendant must show that the information was necessary, and “ ‘not merely that the preparation of Pier] defense was made more burdensome or difficult by the failure to provide the information.’ ” State v. Spigarolo, supra, 385. The preparation of an alibi defense is a factor to be considered by the court in ruling on a defendant’s motion for a further bill of particulars, but “an alibi defense does not create a per se requirement that the state limit the times in the information more narrowly than the evidence available warrants.” State v. Laracuente, supra, 520.

Although the defendant here claimed that she was hampered in preparing an alibi defense, she did not show that more specific dates were available or necessary. She did not ask for a continuance to develop this defense, nor did she present this defense at trial. See State v. Ramos, supra, 279. We conclude that, given the available information, the state reasonably delimited the time frame of the alleged offenses and that the trial court did not err in denying the defendant’s motion for more specific dates.

The defendant also alleges that she was denied discovery of important items on her original and amended bills of particulars. The record, however, fails to demonstrate that the court abused its discretion in refusing her requests. Every item requested was discussed at trial, and the court repeatedly asked the defendant to provide support for her requests from case law or the rules of practice. Several of the requested documents were either not in the state’s possession or did not exist. The amended bill of particulars was denied in its entirety chiefly because the court found the items to be “irrelevant on the face of them or immaterial or so vague as not to be acceptable.”

C

The defendant’s next claims of error challenge the court’s rulings on various motions for continuances. Such rulings will not be overturned on appeal absent an abuse of the court’s discretion. State v. Aillon, 202 Conn. 385, 394, 521 A.2d 555 (1987); Knights of Columbus Federal Credit Union v. Salisbury, 3 Conn. App. 201, 210, 486 A.2d 649 (1985). The defendant bears the burden of demonstrating that the rulings were so arbitrary as to restrict her ability to defend herself. State v. Thomas, 15 Conn. App. 197, 202, 543 A.2d 1356 (1988); Knights of Columbus Federal Credit Union v. Salisbury, supra. The defendant argues that she was most prejudiced by the court’s refusal to grant a continuance during which to analyze register tapes and other documents or, alternatively, to allow her to make copies so she could review the documents “after-hours.” We find no abuse of discretion.

“The Court: For example, it is stated in this motion, ‘all audits performed.’ I don’t know whether that is personal audits or work audits or financial audits or income audits or tax audits or sales tax audits or whatever . . . .”

The court verified that the defense counsel and her accountant had fully reviewed the available tapes and records, and that the accountant had prepared summaries of the sale transactions. The court noted that the defense counsel had access to the material during several recesses and after the previous, abbreviated day in court. See State v. Thomas, supra, 201 (court may consider number of recesses in denying request for continuance). The defendant then asked for copies of the documents so she would “not take up any of the court’s time.” The court denied the request, noting that neither the original discovery motion, filed six months before and renewed two days before, nor the amended motion, filed just the previous day, requested copies.

The defendant is unable to demonstrate that she was prejudiced by these denials. The state did not use the register tapes to prove the amount of loss. The loss calculation was based on the detail summary records and only a few register tapes were entered, without objection, into evidence. The defendant’s own accountant based his calculation of the loss on his own summaries of the tapes, completed on November 4, before the defendant ever made her requests for time or copies.

Although the defendant describes the evidence, as “voluminous,” the evidence offered to prove that she had manipulated the register tapes depended on only thirty-three numbers, each a missing daily summary total. This evidence was not put before the jury until November 13,1986, giving the defendant ample opportunity to examine the tapes and records. The defendant correctly notes that she had no access to the records on the intervening weekend and court holiday, but there were, nevertheless, six full business days between November 4 and November 12, 1986.

There is little merit to the defendant’s other claims that she was arbitrarily denied requests for continuances. The court denied as premature the defendant’s requests for time to interview surprise witnesses only after the defendant was unable to demonstrate prejudice. The list of new witnesses, all of whom were employees of the newsstand and known to the defendant, had been supplied days before the defendant requested continuances and days before these witnesses testified. The defendant did not renew her requests after the witnesses testified. See State v. Chapman, 16 Conn. App. 38, 43-44, 546 A.2d 929 (1988) (continuance appropriate only after surprise witness has testified). Nothing in the cross-examination of the witnesses indicates that the defendant suffered from lack of preparation. See id., 44.

The court also denied a continuance requested after the state filed its amended information on November 14,1986, correcting the victim’s name from “News-rack, Inc.” to “News Rack of New Haven, Inc.” Notwithstanding the defendant’s claim that there were additional documents not supplied, the court found that Elden had not been confused by a subpoena in the wrong corporate name and had provided all available tapes, reports, summaries and tax records in either name.

Ill

In her last claim of error, the defendant challenges the court’s instructions to the jury to disregard the defendant’s suggestion, made in her summation, that she and Elden were engaged in a “fight” over the workers’ compensation claim she filed after injuring her back on her last morning of employment. The defendant claims that there was evidence of such a fight which reflected on Elden’s credibility and would tend to suggest Elden’s motive for accusing her of the thefts. The defendant argues that the court’s instructions to ignore this evidence bolstered Elden’s testimony and improperly withdrew from the jury questions on the witness’ bias and motive, thereby depriving her of her rights to a trial by jury and due process rights to a fair trial. This claim is without merit.

The defendant is unable to show any prejudice arising as a result of the court’s actions. State v. Echols, 170 Conn. 11, 16-17, 364 A.2d 225 (1975). The record does not disclose that the judge improperly took a position of advocacy or conveyed his own opinion of guilt or innocence to the jury. State v. Gordon, 197 Conn. 413, 425-26, 504 A.2d 1020 (1985). The fact that the defendant had filed a workers’ compensation claim was before the jury. The defendant fully argued that the injury to her back, rather than her consciousness of guilt, accounted for her refusal to communicate with Elden after January 6,1986. The defendant fully cross-examined Elden on inconsistencies in his testimony and the issues of his credibility and possible bias were squarely before the jury. Finally, the court was careful to explain that the jury should ultimately rely on its own recollections. In our review of the record, we find no evidence that the court overstepped the fine line of impartiality. See State v. Cintron, 21 Conn. App. 48, 55, 571 A.2d 139 (1990).

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1985) § 53a-124 provides in pertinent part: “(a) A person is guilty of larceny in the third degree when he commits larceny as defined in section 53a-119 and: (1) The value of the property or service exceeds one thousand dollars . . . .” Section 53a-119 provides in pertinent part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to: (1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or another property of another in his care or custody.”

       The defendant also claims that the adverse court rulings denied her effective assistance of counsel. Such a claim is not a proper issue for appellate review; State v. Thomas, 15 Conn. App. 197,200 n.1, 543 A.2d 1356 (1988); and we do not address it.

       The short form information charges a “larceny in the second degree” but cites General Statutes § 53a-122 which defines larceny in the first degree. Degrees of larceny are distinguished only by the amount of loss; thefts exceeding $10,000 are first degree, thefts exceeding $5000 are second degree, thefts exceeding $1000 are third degree. Because the record and briefs indicate that the court and both parties consistently refer to the original allegation as larceny in the second degree, we do so also.

       There is no merit to the defendant’s additional claim that the court abused its discretion by permitting the state to file an amended information during trial on November 14,1986, to change the victim newsstand’s corporate name from “Newsrack, Inc.” to “News Rack of New Haven, Inc.” Under Practice Book § 624, the court acted within its discretionary authority to allow the amendment of the information. The defendant has failed to demonstrate that she was prejudiced by this substitution of names.

       In its rulings on the defendant’s discovery requests, the following explanation as to why the court was denying the request is typical.

       The following colloquy occurred between the defendant’s counsel and the court.
      “Defendant: I would again ask that either I be given copies or be given an opportunity to make copies or be given an opportunity—
      “The Court: The motion itself and the latest amendment does [not] ask for copies and the court is not going to extend the written request by date of the oral amendment .... The court makes the finding that under Practice Book, Section 745, no such showing has been made of good cause specifically with regard to good cause at this time of the trial. The court notes that this case has been on the firm jury list for some time to this court’s knowledge and . . . the court has been sitting at least two weeks.”

       During the cross-examination of the defendant’s accountant, the state specifically inquired as to whether the expert’s summaries and analysis suffered from lack of access to the detail tapes.
      “The State: Now, would it be fair to say that if a detailed, any portion of the detailed tape was not available to you that you could not—that it could not be a factor into your analysis?
      “Witness: No. It would not be fair. You don’t need a detailed tape to do this particular calculation .... [I]f you got the summary sheet and you tied it into the deposit . . . you can arrive at all the information without going into the detailed tape.”

       In denying the defendant’s request for continuances in which to interview witnesses, the court stated that “with regard to this request under [Practice Book] § 743, [this court] will deny the request with a finding— the period of time since the disclosure has been adequate for counsel to do whatever interviews will be necessary. In any event, there has been no special showing, and no showing of a claim of surprise or disadvantage.”

       The relevant portion of the court’s jury instructions is as follows.
      “First of all, I want to first indicate that there was some suggestion in the argument that was made that there was evidence from which you could consider that there was some kind of a fight going on over the workman’s compensation claim. I’m going to instruct you that you can ignore such evidence. Your recollection of the evidence is what counts and so I say that again if my recollection is wrong, then you rely on your recollection. I remember that there was a letter that was an exhibit and on January 22 a letter was sent saying in essence, giving the name and address of the workman’s compensation carrier. I remember the witness testifying maybe eight times that he didn’t handle the workman’s compensation. He didn’t know anything about it. Whether you believe him or not .... I don’t remember any evidence with a fight over any kind of workman’s compensation claim other than the claim was filed. So I’m going to instruct you that if your recollection is the same as mine, you are to completely disregard that comment in your.deliberation when you go into the deliberation room.”