text:
    DiPasquale Construction Corporation v. Wolfgang Zinnert et al.
    (5649)
    Dupont, C. J., Bieluch and Foti, Js.

      Argued January 13
    decision released April 5, 1988

      David M. Reilly, for the appellants (defendants).

      Vincent T. McManus, Jr., for the appellee (plaintiff).
   Foti, J.

The defendants appeal from the judgment of the trial court granting the plaintiff’s motion for a disciplinary nonsuit of the defendants’ counterclaim because they did not file a substitute pleading after one count of their counterclaim and five special defenses were stricken pursuant to Practice Book § 157. The sole issue on appeal is whether Practice Book § 157 requires that a party file a substitute pleading when less than the entire pleading has been stricken. We hold that it does not.

The facts relevant to this appeal are not in dispute. The plaintiff filed a two count complaint alleging breach of contract for the sale of real property. The defendants filed an answer with five special defenses and a counterclaim in two counts. The plaintiff moved to strike the first count of the counterclaim and each of the five special defenses. The court granted the plaintiffs motion to strike because the defendants failed to file a memorandum of law in opposition to the motion, as prescribed by Practice Book § 155. See Hughes v. Bemer, 200 Conn. 400, 510 A.2d 992 (1986).

The plaintiff subsequently moved for default on the grounds that the defendants “failed to file their subsequent pleading in compliance with the court’s order” and “for their failure to plead within such times as provided under Connecticut Rules of Practice.” The defendants filed an objection to the motion for default claiming the rules of practice do not require repleading when only a portion of a pleading is stricken. The defendants then filed a motion to reargue the default and a motion to reargue the original motion to strike.

In a one page memorandum of decision, the court interpreted the motion to reargue the default as a “motion to open and set aside its order of default.” The court stated that it would consider the motion to set aside if the defendant filed an amended answer without the special defenses. The court denied the defendant’s motion to reargue the motion to strike. The defendant did not replead.

The plaintiff then moved for default and nonsuit because the defendants failed to plead over after the motion to strike had been granted. The court granted the motion for “nonsuit on the counterclaim.”

The defendants contend that our rules of practice and case law allow a party to stand on that portion of its pleadings that remains after a portion has been stricken. In particular, the defendants contend that our rules of practice, which interpret repleading as wholly eliminating the original pleadings, force a party either to stand on his original pleadings and appeal adverse rulings after final disposition, or lose the right to challenge those rulings forever by repleading.

The defendants correctly point out that when a court grants a motion to strike an entire pleading the losing party may take one of two courses of action. He may amend his pleadings, or he may stand on his original pleadings, allow judgment to be rendered and appeal. Royce v. Westport, 183 Conn. 177, 178, 439 A.2d 298 (1981). The filing of the amended pleading is a withdrawal of the original. Rossignol v. Danbury School of Aeronautics, Inc., 154 Conn. 549, 554, 227 A.2d 418 (1967). If a party chooses to amend its pleadings, then challenges to the rulings made on those original pleadings are wholly foreclosed. Good Humor Corporation v. Ricciuti, 160 Conn. 133, 135-36, 273 A.2d 866 (1970); cf. Nowak v. Nowak, 175 Conn. 112, 394 A.2d 716 (1978) (exception for special defenses). If an entire pleading is stricken and no substitute pleading is filed, upon motion the court may render judgment. Practice Book § 157. This is an appealable final judgment. Norwich v. Silverberg, 200 Conn. 367, 369 n.3, 511 A.2d 336 (1986); Breen v. Phelps, 186 Conn. 86, 439 A.2d 1066 (1982).

In this case, the court only struck a portion of the defendants’ counterclaim, leaving in place the second count. Under such circumstances, the losing party is under no obligation to file a substitute pleading but may stand on what remains of his original pleadings. Practice Book § 157. It would, indeed, be ironic to require a party, who has had portions of his pleadings stricken, to replead when our Supreme Court has concluded that the act of repleading substitutes the new pleadings for the original and forecloses the right to appeal the decision to strike. Royce v. Westport, supra. The defendants, therefore, should have been permitted to stand on the remaining count of their counterclaim.

There is error, the judgment of nonsuit is set aside and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       Practice Book § 157 provides: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       The plaintiffs motion for a default, granted by the court, asserted that the court, in granting the plaintiffs motion to strike, ordered the defendants to file a subsequent pleading. The plaintiff has reiterated this assertion in its appellate brief, claiming that the defendants were ordered to file a substitute pleading. The original order striking portions of the counterclaim, however, does not include an order requiring the defendant to replead.

       The proper procedure, when the trial court has granted a motion to strike an entire pleading and the party whose pleading has been stricken fails to file a new pleading within fifteen days is for either party to move for judgment on the stricken complaint, counterclaim or cross complaint. Practice Book § 157. A motion for default or nonsuit is not a proper motion.

       Our rules of practice provide for an interlocutory appeal when less than an entire complaint, counterclaim or cross complaint is dismissed or stricken: “When more than one count is presented in a complaint, counterclaim or cross complaint, and not all of the counts of such pleading have been dismissed or stricken, the trial court may upon motion direct the entry of a judgment only upon those dismissed or stricken counts which are directed against a party against whom no relief is sought in the remaining counts. When more than one count is presented in a complaint, counterclaim or cross complaint, and a summary judgment has not been granted on all the counts of such complaint, counterclaim or cross complaint, a summary judgment upon only those counts which are directed against a party against whom no relief is sought in the remaining counts of the complaint, counterclaim or cross complaint shall constitute a final judgment.” Practice Book § 4002 (c).


source: Caselaw Access Project

author: Spallone, J.

license: Public Domain

text:
    State of Connecticut v. Michael Watkins
    (5802)
    Spallone, Daly and Norcott, Js.

      Argued January 12
    decision released April 5, 1988

      Peter A. Kelly, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, was Roland Fasano, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant appeals from the judgment of conviction, after a jury trial, of two counts of robbery in the first degree; General Statutes § 53a-134 (a) (2); burglary in the first degree; General Statutes § 53a-101 (a) (2); and possession of a sawed-off shotgun. General Statutes § 53a-211.

The defendant claims the trial court erred (1) in refusing to permit the defendant to introduce evidence that a third party committed the robbery with which he was charged, (2) in upholding potential defense witnesses’ claims of privilege against self-incrimination, and failing to grant immunity to these witnesses in order to compel them to testify, (3) in refusing to admit, as a declaration against penal interest, the statement given to the police by a non-available witness, (4) in refusing to instruct the jury in accordance with the definition of “possession” suggested by the defendant in his request to charge, (5) in denying the defendant’s motion in limine regarding rebuttal evidence intended to impeach the credibility of a defense witness, and (6) in denying the defendant’s motion to suppress his out-of-court identification on the ground of an impermissibly suggestive photo array. We find no error.

Evidence was elicited during the trial which would support the jury’s finding of the following facts. At approximately 6 a.m. on November 14, 1985, Alberto Rodriguez (Alberto) and his girlfriend were occupying a bedroom at the rear of a New Haven apartment he shared with his cotenant, Josué Rodriguez (Josh) who, at that time, was in a front bedroom with his girlfriend, Stephanie Benjamin. Josh and his companion were awakened by the sound of the door to the hallway being kicked in. Immediately thereafter, three black males burst into the bedroom. One of the intruders, later identified as the defendant, stood over the couple holding a sawed-off shotgun and ordered Josh to lie on his stomach and to turn his head away. The intruder held the shotgun against the back of Josh’s head. Benjamin remained immobile, and was able to observe the defendant, who was unmasked.

Meanwhile, the second and third perpetrators passed through Josh’s bedroom, through the living room and then kicked or pushed open the door into Alberto’s bedroom. The room was unlit, so neither Alberto nor his girlfriend could identify the two men. Alberto leaped from his bed and struggled with one of the intruders. During the tussle, the intruder fired a shot, wounding Alberto in his upper right arm. The two intruders then took jewelry and some cash from Alberto’s dresser and returned to Josh’s room, where the defendant was still wielding the shotgun. The intruders took jewelry from Josh’s dresser and then fled the apartment. Soon after, a car was heard being driven away.

At approximately 1 p.m. on that same day, November 14, 1985, Katherine Wright, who lived at 17 Dickerman Street, reported to the police that a young black male had just fired a shotgun in a neighboring yard and had then walked out of the yard onto Dickerman Street, with the shotgun slung over his shoulder. When police arrived on Dickerman Street, they encountered the young man, later identified as the defendant, and three or four other men standing near a light colored Ford Pinto. In the back seat of the car was a partially open blue gym bag, containing a sawed-off shotgun with a shoulder strap. In the yard behind 18 Dickerman Street, the police found a small pouch containing three unspent .14 gauge shotgun shells. Wright identified the defendant as the man who had fired the shotgun. At first, the defendant denied any involvement, but he later admitted having fired the weapon. The defendant was arrested for possession of a sawed-off shotgun.

Detective Leroy Dease, who was investigating the Rodriguez robbery, noticed that the defendant fit the description of the intruder given by Stephanie Benjamin. Dease then compiled a photo array consisting of eleven black and white photographs, including one of the defendant. On the afternoon of November 15,1985, Dease showed the array to Benjamin who picked out the defendant’s photo and stated that she was “95 percent sure” that he was the intruder she saw. Benjamin had. previously told the police that, although she recognized the defendant as someone she had seen before in a local bar, she did not know his name. Benjamin was also shown the shotgun taken from the Pinto and she responded that it was similar to the one held by the defendant at the time of the robbery. Thereafter, on December 5, 1985, Benjamin was escorted by the police to the courthouse where the defendant was being arraigned on the shotgun charge. She looked into a crowded courtroom and made a positive identification of the defendant as the intruder armed with the sawed-off shotgun. During the trial, she also made an in-court identification of the defendant.

The defendant was tried before a jury and found guilty of the four crimes with which he was charged. The defendant now appeals his convictions to this court.

I

In his first claim, the defendant contends that the court committed error in excluding evidence proffered by the defendant that third parties could have committed the crime.

During the course of the trial, the defendant, in an offer of proof outside the presence of the jury, presented the testimony of three men as potentially exculpatory evidence. The first, Philip Parker, stated that he was serving a prison sentence for a street robbery he committed on December 19, 1985. When asked if he had used a shotgun in that robbery, he invoked his privilege against self-incrimination because he had not been convicted of possession of a shotgun in that case. He also denied any knowledge of the robbery at the Rodriguez apartment.

The defendant next offered the testimony of Ricardo Maldonado, who was serving a prison sentence for the same December 19, 1985 street robbery. Maldonado testified that Parker had indeed been armed with a sawed-off shotgun at the time of the street crime. He further testified that he and Parker took jewelry and a fur coat from their victim and brought the items to one William Greene, who had also been convicted with Parker and Maldonado. Maldonado testified that he was not in New Haven on November 14,1985, and that he knew nothing of the Rodriguez robbery.

William Greene also testified during the offer of proof. He stated that he was currently incarcerated for his part in the December 19, 1985 street robbery, but denied any knowledge of the Rodriguez robbery. When asked if, while incarcerated at the Whalley Avenue jail, he had spoken to the defendant, he invoked his privilege against self-incrimination.

The defendant then proffered his own testimony that he had met William Greene at the Whalley Avenue jail and had told Greene about the charges pending against him for the Rodriguez robbery. According to the defendant, Greene said he had an idea who committed the crime because “the person” had come to him with “gold and drugs.”

On the basis of testimony proffered, defense counsel requested that the prosecutor grant immunity to William Greene “so that we could get his testimony with respect to whatever conversations that he had with Michael Watkins in the jail.” The prosecutor refused to grant immunity to Greene. The court, noting that the crimes were dissimilar and that the claim regarding exculpatory evidence was purely speculative, stated that it saw no basis for the state to grant immunity or for the jury to hear any of the proffered testimony. The defendant excepted to this ruling.

There is no merit to the defendant’s claim that the court erred by not accepting this testimony. On the basis of the facts and circumstances of this case, the court was justified in excluding the proffered evidence as speculative and irrelevant. The trial court has broad discretion in determining the relevancy of proffered evidence, and a ruling excluding evidence as irrelevant will not be disturbed absent a showing of an abuse of discretion. State v. Franko, 199 Conn. 481, 487-88, 508 A.2d 22 (1986).

We note that none of the proffered testimony directly connected any of the third parties to the crime committed at the Rodriguez apartment. State v. Kinsey, 173 Conn. 344, 348, 377 A.2d 1095 (1977); State v. Perelli, 125 Conn. 321, 328, 5 A.2d 705 (1939). Neither was that testimony sufficient to indicate that a “signature” type crime spree had occurred which would indicate the culpability of persons other than the defendant. See, e.g., State v. Morowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986); State v. Mandrell, 199 Conn. 146, 152, 506 A.2d 100 (1986); State v. Carsetti, 12 Conn. App. 375, 380-81, 520 A.2d (1987). “ ‘[I]t is within the sound discretion of the trial court to refuse to admit such evidence when it simply affords a possible ground of possible suspicion against another person.’ ” State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981), quoting State v. Renteria, 21 Ariz. App. 403, 404, 520 P.2d 316 (1974). We can find no fault with the trial court’s proper exercise of its discretion.

II

The defendant’s second claim of error is closely related to his first. In essence, he asserts that the court, after hearing the testimony of Parker, Maldonado and Greene during the offer of proof, should have given “a judicial grant of immunity” to any or all of these potential witnesses and thereby compel them to testify. Our short response to such a claim is that our courts have no authority to grant such immunity. See State v. McIver, 201 Conn. 559, 567, 518 A.2d 1368 (1986); State v. McLucas, 172 Conn. 542, 561, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); State v. Simms, 170 Conn. 206, 210-11, 365 A.2d 821, cert. denied, 425 U.S. 954, 96 S. Ct. 1732, 48 L. Ed. 2d 199 (1976). Furthermore, even if we were to find that our courts do have the ability to grant judicial immunity, the defendant did not properly raise the issue in the trial court. The defendant specifically requested that the prosecution offer immunity to Greene; at no time did the defendant request that the court itself consider granting immunity. Claims raised for the first time on appeal will not be considered. Practice Book § 4185; see also Tucker v. Alleyne, 195 Conn. 399, 402 n.3, 488 A.2d 452 (1985); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). The defendant has raised no exceptional circumstances to warrant a departure from this general rule and the record does not adequately support a claim that the defendant has been deprived of a fundamental right or a fair trial. Thus, we will not review this claim.

Ill

As his third claim, the defendant argues that the trial court committed error in refusing to admit, as a declaration against penal interest, the six page, written statement of Frank Hawley, Jr. Hawley, the owner of the Pinto in which the sawed-off shotgun was found, had given the statement to the police hours after the defendant had been arrested. Our review of the statement in question reveals that it was not a statement against the penal interest of Hawley, but was in fact a statement in which he denied having knowledge of the shotgun being in his car. The statement was exculpatory in nature, and could not conceivably be considered as against the penal interest of the declarant. See, e.g., State v. Hernandez, 204 Conn. 377, 392 n.8, 528 A.2d 794 (1987); State v. DeFreitas, 179 Conn. 431, 447 n.6, 426 A.2d 799 (1980). There is no merit to this claim.

IV

The defendant also claims error in the trial court’s refusal to charge the jury on the element of possession in accordance with the definition included in the defendant’s requested jury instructions. The defendant was charged with violating General Statutes § 53a-211, which prohibits possession of a sawed-off shotgun. The defendant was specifically charged with possession of the shotgun at the Dickerman Street address where he admitted that he had held, carried, loaded, fired and controlled the weapon. In a request to charge, the defendant asked that the court instruct the jury that possession be defined as connoting “that such property is held by the possessor for a substantial period of time, either as owner of the property or as proprietor of a qualified right in it.” The requested definition is not a correct statement of the law and, therefore, the trial court was not obligated to give it. State v. Pollitt, 205 Conn. 61, 84, 530 A.2d 155 (1987); State v. Chetcuti, 173 Conn. 165, 170-71, 377 A.2d 263 (1977). The element of possession, as used in our criminal statutes, is expressly defined in General Statutes § 53a-3 (2), where it states: “ ‘possess’ means to have physical possession or otherwise to exercise dominion or control over tangible property.” The trial court correctly instructed the jury on the statutory definition of “possess,” and emphasized that the state was required to prove possession beyond a reasonable doubt. The charge as given in this case was a correct statement of the law and was sufficient to guide the jury in its determination as to whether the state sustained its burden of proving the element of possession. See State v. Hill, 201 Conn. 505, 514-15, 518 A.2d 388 (1986). The trial court did not err in refusing the defendant’s requested definition.

V

The defendant next claims that the trial court committed reversible error when it denied his motion in limine regarding rebuttal testimony offered to impeach the testimony of the defendant’s sister. The trial court denied the defendant’s motion in limine and permitted the state to call two police officers as witnesses to refute the testimony of the defendant’s sister, his alibi witness, that she had given the police a statement sometime after her brother’s arrest. That this rebuttal testimony was relevant is readily apparent; it directly contradicts the testimony given by the witness. When presenting rebuttal evidence, the state is “confined to testimony which is directed at refuting the evidence given by the defendant”; State v. Addazio, 169 Conn. 416, 427, 363 A.2d 153 (1975); or is “in general contradiction of testimony given by the defendant.” State v. Fine, 159 Conn. 296, 301, 268 A.2d 649 (1970). The admission of rebuttal evidence is ordinarily within the sound discretion of the trial court. See, e.g., State v. Lisella, 187 Conn. 335, 337, 445 A.2d 922 (1982); State v. Nims, 180 Conn. 589, 599, 430 A.2d 1306 (1980); State v. Palozie, 165 Conn. 288, 299, 334 A.2d 468 (1973); State v. Leopold, 110 Conn. 55, 67, 147 A. 118 (1929). We find nothing in the court’s ruling on this issue to support the defendant’s claim of error.

VI

Finally, the defendant claims error in the trial court’s denial of his motion to suppress the identification made by Stephanie Benjamin on the ground that the photo identification procedure was so impermissibly suggestive as to render her out-of-court and in-court identifications unreliable. Our review of the record reveals that this claim is unsupported and that the procedures were neither impermissibly suggestive nor unreliable. See, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). See also State v. Mayette, 204 Conn. 571, 581-84, 529 A.2d 673 (1987); State v. Williams, 203 Conn. 159, 172-78, 523 A.2d 1284 (1987); State v. McKnight, 191 Conn. 564, 569-74, 469 A.2d 397 (1983).

We hold that the trial court acted appropriately and in accordance with applicable law with respect to the defendant’s claims of error.

There is no error.

In this opinion the other judges concurred.


author: Foti, J. Bieluch, J.,

text:
    Double I Limited Partnership v. Town of Glastonbury
    (5505)
    Dupont, C. J., Bieluch and Foti, Js.

      (One judge dissenting)

    Argued January 14
    decision released April 5, 1988

      Bruce S. Beck, with whom, on the brief, was Steven D. Zuboff, for the appellant (plaintiff).

      Steven W. Varney, for the appellee (named defendant).

      Sharon H. Purtill, for the appellee (defendant D. W. Fish).
   Foti, J.

The plaintiff appeals from the judgment rendered after the trial court granted the defendants’ motion to strike. The sole issue on appeal is whether the trial court erred in striking the plaintiff’s complaint for failure to allege facts sufficient to establish standing to challenge the disbursement of funds for the improvement of an unimproved road located in the town of Glastonbury.

The plaintiff brought an action against the defendant town of Glastonbury, in one count, seeking an injunction to prohibit the disbursement of funds for the improvement of an unimproved road within the town. The town moved to strike the complaint because the plaintiff lacked standing to challenge the actions of the town; the court granted this motion to strike. The plaintiff filed a substitute complaint which the court again struck for failure to allege facts sufficient to establish standing; the plaintiff then moved for permission to file a second amended complaint seventeen days after the court granted the defendants’ second motion to strike; the defendants objected to the plaintiff’s motion to amend on the grounds that the complaint was filed two days late; Practice Book § 157; and because the third complaint failed to allege any new facts upon which relief could be granted. The court sustained the defendants’ objection and subsequently granted their motion for judgment.

The facts relevant to this appeal are as follows. The town maintains an unimproved road fund (fund) which is comprised of monies allocated from funds appropriated to the state’s commissioner of transportation by the legislature pursuant to General Statutes § 13a-175d. In 1985, the balance in the fund was approximately $107,000. That year, the defendant, Donald W. Fish, made a request that money be allocated for the purpose of improving Birch Mountain Road, an unimproved public road in the town. The plaintiff claims that it has standing to challenge the action of the town as a taxpayer; as an owner of property abutting another unimproved public road in the town and under article first, § 1, of the Connecticut constitution. We disagree.

In reviewing a “judgment following the granting of a motion to strike, we take the facts to be those as alleged in the substituted complaint, construed in a manner most favorable to the pleader. For purposes of appeal, all well pleaded facts and those facts necessarily implied and fairly provable from the allegations are taken as admitted.” Fortini v. New England Log Homes, Inc., 4 Conn. App. 132, 134, 492 A.2d 545 (1985).

The issue of standing implicates the court’s subject matter jurisdiction. Planning & Zoning Commission v. Goal, 9 Conn. App. 538, 542, 520 A.2d 246 (1987). Central to establishing standing is some allegation that the plaintiff has been aggrieved by the actions of the municipal entity.

“ ‘The fundamental test for determining aggrievement encompasses a well-settled twofold determination: first, “the party claiming aggrievement must successfully demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must successfully establish that this specific personal and legal interest has been specially and injuriously affected by the decision.” ’ Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978), quoting Nader v. Altermatt, 166 Conn. 43, 51, 347 A.2d 89 (1974); Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The determination of aggrievement is a question of fact for the trial court, and the plaintiff has the burden of proving that fact.” Olsen v. Inland Wetlands Commission, 6 Conn. App. 715, 718, 507 A.2d 495 (1986).

The test for whether a party has standing to challenge the actions of his town is well settled. “[OJur cases in this area have required two conditions ... to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer ‘some pecuniary or other great injury.’ Bassett v. Desmond, [140 Conn. 426, 430, 101 A.2d 294 (1953)]; see Belford v. New Haven, [170 Conn. 46, 53, 364 A.2d 194 (1975)]; Atwood v. Regional School District No. 15, 169 Conn. 613, 617, 363 A.2d 1038 (1975); Gannon v. Sanders, [157 Conn. 1, 244 A.2d 397 (1968)]; see 18 McQuillin, Municipal Corporations (3d Ed.) §§ 52.12, 52.24.” Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549, 427 A.2d 822 (1980). The first condition ensures a legal relationship between the plaintiff and the municipality. The second condition ensures that the decision of the court is capable of providing specific relief to the litigant, not merely generalized relief.

Here, the plaintiff alleged specific facts sufficient to meet the first condition. The facts alleged in the complaint, however, fail to meet the second condition which requires that the plaintiff suffer some particularized injury.

Injury sufficient to meet the second condition may be met by alleging facts that demonstrate that the plaintiff will incur an increased tax burden as a result of the town’s actions. Bassett v. Desmond, supra. Here, the plaintiff is unable to allege such facts as the monies in the fund are provided by the state legislature, not from local tax revenue. Thus, any claim regarding a potential tax increase is identical to similar claims that each and every taxpayer in the state is capable of raising.

Similarly, the plaintiff’s claim that he was injured by the decision of the town to expend funds on Birch Mountain Road, rather than the unimproved road abutting his property, is merely a generalized challenge to the discretionary function of local government. This court will not disturb a discretionary action of local government absent a showing of fraud or a gross abuse of discretion. McAdam v. Sheldon, 153 Conn. 278, 281, 216 A.2d 193 (1965); 18 E. McQuillin, supra, § 52.21. In this case, the plaintiff alleged no facts upon which the trial court could reasonably have concluded that the town’s actions were fraudulent or a gross abuse of discretion.

The plaintiff next claims that he had standing to challenge the town’s actions because the allocation of monies from the fund was illegal. The only Connecticut authority cited for this proposition is Nevers v. Anderson, 40 Conn. Sup. 539 (1984), aff'd, 201 Conn. 377, 517 A.2d 620 (1986).

In Nevers, the plaintiff met both conditions of the test for standing articulated in Bassett v. Desmond, supra. First, the plaintiff was a taxpayer of the town of New Britain; second, the pay increase the aldermen had voted for themselves, in contravention of the town charter, would have been funded by local tax revenue, thus, presenting the possibility of increased taxes for the plaintiff.

As we have already pointed out, the plaintiff in this case cannot meet the second condition for standing as the monies which comprise the town’s unimproved road fund are allocated from state revenue, not local revenue.

The plaintiff’s assertion that Nevers stands for the proposition that a taxpayer has standing when his municipal entity engages in illegal conduct incorrectly represents the holding of that case. In Nevers, the Supreme Court did not reach this question nor will we reach it today. In the ninth paragraph of its complaint, the plaintiff alleged that the town council violated the “Town Charter of the Town of Glastonbury.” Yet there is no reference to specific provisions in the town’s charter which the actions of the town council are alleged to have violated, nor does the plaintiff explain in its appellate brief how the actions of the town violated the charter. Similarly, the plaintiff’s allegation in paragraph eleven of its complaint, which alleges “collusion and/or bad faith,” is unsupported by any facts upon which the trial court could have found illegal conduct. Thus, even if under some circumstances illegality coupled with taxpayer status could be an independent basis for taxpayer standing to sue, this plaintiff has failed to allege the threshold facts of illegality in its complaint to obtain that status.

The plaintiffs final claim is that it has standing to sue under article first, § 1 of the Connecticut constitution. In particular the plaintiff claims that the allocation of funds for Birch Mountain Road deprived him of constitutionally protected privileges because the town had not allocated any funds for the improvement of the unimproved road abutting his property. “When the thrust of the challenge is that the act violates article first, § 1, of the state constitution, the plaintiffs have demonstrated such invalidity if they can show beyond a reasonable doubt that the legislation ‘directs the granting of an emolument or privilege to an individual or class without any purpose, expressed or apparent, to serve the public welfare thereby.’ Warner v. Gabb, 139 Conn. 310, 313, 93 A.2d 487 [1952]; Carilli v. Pension Commission, 154 Conn. 1, 6-7, 220 A.2d 439 [1966].” Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 115, 355 A.2d 72 (1974). Although the plaintiff alleged, in its complaint, that Fish would benefit from improvements to Birch Mountain Road the plaintiff did not allege facts upon which the court could have concluded that the public would be denied these same benefits.

We conclude, therefore, that the plaintiff’s complaint failed to allege a deprivation of constitutionally protected privileges or any specific injury sufficient to confer standing to challenge the town’s actions.

There is no error.

In this opinion Dupont, C. J., concurred.

Bieluch, J.,

dissenting. In companion motions, the two defendants moved to strike the plaintiff’s amended complaint for lack of standing to bring suit. These the trial court granted, finding, without further articulation, that the “plaintiff does not allege facts requisite to give it standing to sue.” In my view, the allegations of the plaintiffs amended complaint are sufficient to establish its standing to bring this suit. For that reason, I disagree with the majority’s conclusion to the contrary.

“A motion to strike challenges the legal sufficiency of a pleading. Practice Book § 152; Blake v. Levy, 191 Conn. 257, 258 n.1, 464 A.2d 52 (1983); Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 530 n.2, 461 A.2d 1369 (1983). It replaced the demurrer in our practice. Practice Book § 151. Like the demurrer, it admits all facts well pleaded; it does not admit legal conclusions or the truth or accuracy of opinions stated in the pleadings. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980); McAdam v. Sheldon, 153 Conn. 278, 282, 216 A.2d 193 (1965). The allegations of the pleading involved are entitled to the same favorable construction a trier would be required to give in admitting evidence under them and if the facts provable under its allegations would support a defense or a cause of action, the motion to strike must fail. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra.” (Emphasis in original.) Mingachos v. CBS, Inc., 196 Conn. 91, 108-109, 491 A.2d 368 (1985). In ruling upon a motion to strike, the trial court is limited to the facts alleged in the complaint. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985); Rowe v. Godou, 12 Conn. App. 538, 544-45, 532 A.2d 978 (1987).

Our courts have long recognized the capacity of taxpayers of towns and cities to challenge the legality of the actions of their municipal officers by seeking injunctive relief against such action. Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 548. “[0]ur cases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer ‘some pecuniary or other great injury.’ ” Id., 549. Under the second condition, the plaintiff must show that he has a specific legal interest, as distinguished from a mere general interest, in the subject matter of the controversy. Id. The allegations of the plaintiff’s amended complaint fulfill these requirements. Since the taxpayer status of the plaintiff is not in question, the sole issue before us is whether the plaintiff has adequately alleged that it has been harmed by the stated improper action of the defendant town.

The pertinent allegations of the plaintiff’s amended complaint are as follows: The defendant town maintains a fund comprised of state funds allocable to the improvement of unimproved roads. The balance of said fund is approximately $107,000 and no disbursements have been made from this fund for approximately ten years. On or about September 24,1985, the defendant Donald W. Fish requested that approximately $90,000 of these funds be paid to him for the improvement of Birch Mountain Road adjacent to his property. The plaintiff, on or about September 27, 1985, requested that the town “allocate said funds to all unimproved roads located in the Town of Glastonbury, including Dayton Road, an unimproved road in the vicinity of and running through plaintiffs property.”

Although the local board of finance opposed Fish’s request, on October 8, 1985, the town authorized disbursement of $86,000 in connection with his proposed development. This was the maximum amount which could be disbursed without approval of the board of finance, and left a balance of -approximately $21,000 in the unimproved roads fund.

The plaintiff alleged that this action and procedure violated the town charter, was an abuse of the public trust in the funds, and was tainted by collusion and bad faith. The plaintiff claimed aggrievement in that (1) the town unlawfully used public funds for a private benefit to the exclusion of it and other residents and taxpayers, and (2) in denying the plaintiff’s request to allocate the funds to all unimproved roads, including Dayton Road which runs through its property, and in nearly exhausting these funds accumulated over approximately ten years, the town had deprived the plaintiff of potential benefits to be derived from the use of public funds for such road improvements in the vicinity of its property.

“ ‘A highway [or public road] is nothing but an easement, comprehending merely the right of all the individuals in the community to pass and repass, with the incidental right in the public to do all the acts necessary to keep it in repair.’ Peck v. Smith, 1 Conn. 103, 132 [1814]; Newton v. New York, N.H. & H.R. Co., 72 Conn. 420, 426, 44 A. 813 [1899].” Antenucci v. Hartford Roman Catholic Diocesan Corporation, 142 Conn. 349, 355-56, 114 A.2d 216 (1955). The construction, improvement, maintenance and repair of roadways is a public duty imposed by charter or legislation upon the towns of our state. To ease the financial and local tax burden upon the municipalities, our legislature has enacted a town aid program for financing local roads. General Statutes §§ 13a-175a through 13a-175j. Section 13a-175a allocates a fund of $14,600,000 each fiscal year to be used by the various towns for the construction, improvement, maintenance and repair of highways and bridges, and for related purposes and programs. The formula for distribution of these funds is provided in § 13a-175b. An additional $4,600,000 is distributed annually to the towns for these purposes under a different formula set forth in § 13a-175i.

A special fund for the improvement of dirt and unimproved roads in the amount of $1,000,000 is allocated annually for distribution to the towns pro rata on the basis of their total mileage of unimproved highways. General Statutes § 13a-175d. Under the terms of this statute, “if approved by the commissioner [of transportation] and the selectmen in such town, any portion of said sum distributed to such town in excess of the amount used for the purposes as provided in this section may be used for the purposes of the allocation provided under section 13a-175a” for the construction, improvement, maintenance and repair of highways and bridges, and related purposes and programs.

These state assistance programs were enacted to aid the towns in financing their road programs. Allocations to the towns under their provisions supplement local budgets from tax revenues for road expenditures. Whatever the state does not provide for the improvement of unimproved roads, the town must furnish through the levy of local taxes. These state payments, therefore, bear a direct relationship to town taxes assessed against local property owners, including the plaintiff. Consequently, the plaintiff has a specific, legal and financial interest in the proper public disbursement by the local government of state funds for the improvement of unimproved roads.

The funds received by the defendant town from the state under the provisions of § 13a-175d were not a gift to be distributed by the town at its unauthorized discretion. Upon their receipt by the town treasurer, they became public funds for the benefit of the town and its taxpayers and residents. The disbursement of these funds by the town is a public trust imposed by the legislature. Any breach of that trust, as alleged by the plaintiff, is subject to review by the court. The taxpayers who own property bordering on dirt and unimproved roads have a right to a legal, responsible and accountable use of these funds. The alleged unlawful exclusion of these taxpayers from the town’s program for the improvement of dirt and unimproved roads is reviewable in the plaintiff’s action. The plaintiff has properly alleged “pecuniary or other great injury” by the defendant town’s “gross abuse of discretion, an abuse of power, and an abuse of the public trust, tainted by collusion or bad faith.”

Accordingly, I would find error.

       The original complaint named the town of Glastonbury as the sole defendant in this action. Subsequent to the plaintiffs filing suit, Donald W. Fish moved to be joined as a party defendant claiming an interest in the disposition of the suit because he owned property abutting the road the town planned to improve. The plaintiff did not object to Fish’s motion to be joined and the court granted his motion.

       General Statutes § 13a-175d provides in relevant part: “There shall be allocated from funds appropriated to the commissioner of transportation for town-aid grants for roads the sum of one million dollars annually, to be distributed pro rata to the towns in the state on the basis of the total mileage of unimproved highways in each town, for the improvement or maintenance of dirt and unimproved roads, including bridges on such roads . . . .”

       The plaintiffs allegation that these funds are applicable only to the improvement of unimproved roads is incorrect. General Statutes § 13a-175d provides that “if approved by the commissioner [of transportation] and the selectmen in such town, any portion of said sum distributed to such town in excess of the amount used for the purposes as provided in this section may be used for the purposes of the allocation provided under section 13a-175a.”
      General Statutes § 13a-175a provides: “For each fiscal year there shall be allocated fourteen million six hundred thousand dollars out of the funds appropriated to the department of transportation, or from any other source, not otherwise prohibited by law, to be used by the towns for construction, reconstruction, improvement or maintenance of highways, sections of highways, bridges or structures incidental to highways and bridges or the improvement thereof, including the plowing of snow, the sanding of icy pavements, the trimming and removal of trees, the installation, replacement and maintenance of traffic signs, signals and markings, and for traffic control and vehicular safety programs, traffic and parking planning and administration, and other purposes and programs related to highways, traffic and parking, and for the purposes of providing and operating essential public transportation services and related facilities.”


author: Borden, J.

text:
    State of Connecticut v. James Servello
    (5952)
    Borden, O’Connell and Stoughton, Js.

      Argued January 5
    decision released April 12, 1988

      Joseph G. Bruckmann, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellant (defendant).

      Mitchell S. Brody, deputy assistant state’s attorney, with whom, on the brief, was Cathryn Krinitsky, for the appellee (state).
   Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of larceny in the sixth degree in violation of General Statutes § 53a-125b, and from the judgment of conviction, after trial before the same jury, of being a persistent larceny offender in violation of General Statutes § 53a-40 (c). The defendant claims that the trial court erred (1) in permitting the state to introduce evidence of an attempted larceny by the defendant in the same store thirteen months prior to the conduct giving rise to the charge for which he was being tried, (2) in failing to instruct the jury as to the limited purpose for which evidence of a prior attempted larceny by the defendant could be considered, (3) in its instructions on an essential element of the offense of larceny by shoplifting, (4) in permitting the defendant to be tried as a persistent larceny offender and in sentencing the defendant to an enhanced sentence pursuant to that conviction, (5) in having the same jury which convicted him of larceny in the sixth degree sit as the jury in the trial on the persistent larceny offender charge, and (6) in denying the defendant’s petition for a new trial. The defendant also claims that there was insufficient evidence to support the court’s instruction on larceny by shoplifting and to support his conviction of larceny in the sixth degree. We find no reversible error.

The jury could reasonably have found the following facts. On January 12, 1986, the defendant entered a Radio Shack store in Meriden. After walking throughout the store, he sought reimbursement for three computer software packages. The defendant had no sales receipt for the items. Upon being told by the computer department manager that he could not receive a cash refund for the items and that he should return another day when the general manager was present, the defendant left the store with the merchandise.

On January 14,1986, the defendant returned to the store with the three software packages. The general manager was not present. The defendant again sought a refund. The computer department manager agreed to exchange the software for a police scanner and to refund the difference between the items exchanged.

On January 16,1986, the defendant entered the store and spoke to the general manager. The defendant sought a cash refund for the police scanner but was only permitted to exchange the scanner for a computer monitor and power strip. On the following day, a physical inventory of all items in the store undertaken by its general manager and its computer department manager revealed that there was no record of the purchase of the software taken out of the store by the defendant on January 12.

The defendant was charged with larceny in the sixth degree, involving theft of property where “the value of the property ... is two hundred fifty dollars or less.” General Statutes § 53a-125b. The underlying theories which the state relied on were shoplifting; General Statutes § 53a-119 (9); and obtaining property by false pretenses. General Statutes § 53a-119 (2).

I

The defendant’s first two claims of error pertain to evidence of prior misconduct by him which was admitted over his objection. At trial, the general manager of the Radio Shack store was permitted to testify, over objection and exception by the defendant, that in December, 1984, he observed the defendant pick up a piece of merchandise in the store, carry it to the sales counter, and attempt to exchange it for cash without a sales receipt. The court permitted the testimony on the ground that the prior misconduct evidence was relevant to show the defendant’s “method of operation” and that its probative value outweighed its prejudicial effect.

A

The defendant claims that the court committed error because the evidence did not bear upon a truly disputed issue in the trial and because the prejudicial effect of the evidence outweighed its probative value. We disagree.

“[T]he prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.” (Footnotes omitted.) C. McCormick, Evidence (3d Ed.), pp. 557-58. “The rationale of this rule is to guard against the use of such evidence to show the defendant’s bad character or to suggest that the defendant has a propensity for criminal behavior. State v. Horowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986); State v. Williams, 190 Conn. 104, 107-108, 459 A.2d 510 (1982).” State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987); State v. Murrell, 7 Conn. App. 75, 79-80, 507 A.2d 1033 (1986). Notwithstanding these general principles, “such evidence may be offered in proof of an issue in the case, such as intent, identity, malice, motive or system of criminal activity.” State v. Pollitt, 205 Conn. 61, 69, 530 A.2d 155 (1987); State v. Murrell, supra, 80.

“Our analysis on the issue of other crimes evidence is two-pronged. ‘First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence.’ ” State v. Jones, supra, 660, quoting State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983).

The defendant argues that the trial court admitted the challenged evidence to prove identity, and that it was not properly admitted on that basis because the defendant’s identity on January 12, 14, and 16, 1986, was not disputed at trial. See C. McCormick, supra, pp. 564-65. The state does not dispute this characterization of the purpose for which the evidence was intended, but the state argues that the limitation suggested by the defendant, namely, that identity be actively disputed, is not a precondition to the application of the identity exception. We need not resolve this issue, however, because in assessing the admissibility of the misconduct evidence, our inquiry focuses on the grounds upon which the trial court admitted the evidence at trial. State v. Geyer, 194 Conn. 1, 5-7, 480 A.2d 489 (1984); State v. Murrell, supra, 80.

In this case, the state offered the evidence as probative of a “mode of operation on the part of the defendant.” Relying on McCormick’s treatise on evidence, the state argued that this “pattern” of “unusual” conduct was admissible to show the “handiwork of the accused.” See C. McCormick, supra, pp. 559-60. The “handiwork of the accused” exception is most often used to prove identity. See State v. Pollitt, supra, 69-70; C. McCormick, supra, p. 563.

The court agreed that the evidence was relevant to show “method of operation.” In doing so, however, the court did not admit the prior misconduct evidence on the issue of identity. Instead, the court noted other recognized exceptions — “knowledge, intent, motive and common scheme or design” — and specifically relied on State v. Lizzi, 199 Conn. 462, 468, 508 A.2d 16 (1986), and State v. Wilson, 199 Conn. 417, 513 A.2d 620 (1986), both of which focused on the use of prior misconduct evidence to show the intent of the accused. We conclude, therefore, that the court permitted the challenged evidence as probative of the issue of intent.

Intent was an essential and disputed element of the crime with which the defendant was charged. See footnote 1, supra; State v. Lizzi, supra, 469 (prior attempt to falsify documents “highly probative of the defendant’s intent to defraud” in trial on charge of larceny by embezzlement); annot., 78 A.L.R.2d 1359. Therefore, the prior misconduct was probative of an issue in the case and could properly be admitted on that basis, if its probative value outweighed its prejudicial effect. Furthermore, we conclude that, under all the facts of this case, “[t]he trial court in the proper exercise of discretion could reasonably have determined that the probative force of this evidence outweighed its prejudicial effect.” State v. Lizzi, supra.

B

The defendant also claims that the trial court erred in failing to instruct the jury on the limited purpose for which the prior misconduct evidence was admitted. Since the defendant failed to raise this claim at trial, his argument is that the court should have given such a limiting instruction sua sponte. The defendant’s claim is not entitled to review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because a limited review of it discloses that it is not truly of constitutional proportions; State v. Huff, 10 Conn. App. 330, 334, 523 A.2d 906, cert. denied, 203 Conn. 809, 525 A.2d 523 (1987); or under the “plain error” doctrine. State v. Johnson, 188 Conn. 515, 520-22, 467 A.2d 1237 (1982); see United States v. Cooper, 577 F.2d 1079, 1088-89 (6th Cir. 1978), and cases cited therein (failure to give cautioning instruction for admission of prior misconduct evidence not plain error); see also Jones v. United States, 477 A.2d 231, 241-46 (D.C. 1984). We do not read State v. Ouellette, 190 Conn. 84, 92-96, 459 A.2d 1005 (1983), as requiring a different result under the circumstances of this case. In Ouellette, the defendant requested a limiting instruction. Id., 89.

II

The defendant next challenges the trial court’s instructions to the jury on the offense of larceny by shoplifting. In charging the jury on the essential elements of larceny by shoplifting, the trial court read the statutory definition found in General Statutes § 53a-119 (9). See footnote 1, supra. The court then explained each of the elements of shoplifting. In doing so, the court instructed the jury, in part, as follows: “ ‘Without paying the purchase price’ means the defendant must also have taken possession with the intention of evading payment of the purchase price. Such must have been his intention at the time he took possession.” The defendant argues that the court’s explanation of the phrase “without paying the purchase price” was misleading in that it removed from the jury’s consideration whether the goods have been paid for, an essential element of larceny by shoplifting. We disagree.

Viewing the challenged instruction as a whole and considering it from the standpoint of its probable effect upon the jurors in guiding them to a proper verdict in the case; State v. McKnight, 191 Conn. 564, 582, 469 A.2d 397 (1983); State v. Taxiltaridis, 2 Conn. App. 617, 620, 481 A.2d 98 (1984); we conclude that the jury was not misled or improperly instructed on the concept of “without paying the purchase price” for purposes of larceny by shoplifting. The trial court read the first sentence of General Statutes in full, and did not, in its further comments on the meaning of the statute, negate the essential meaning of the statutory language. See State v. Foshay, 12 Conn. App. 1, 23, 530 A.2d 611, cert. granted in part, 205 Conn. 813, 532 A.2d 587 (1987). Immediately after reciting the challenged instruction, the court correctly placed the intent aspect of the offense which it had just explained in the context of the act of nonpayment, noting that “ [ultimately the state has the burden of convincing you beyond a reasonable doubt that the defendant had dishonest intention of taking or using the goods without payment.”

Ill

The defendant next claims that the court erred in permitting him to be tried as a persistent larceny offender. The facts relevant to this claim of error are as follows. The defendant was originally charged in a short form information with one count of larceny in the sixth degree. Nearly seven months later, and three days before the commencement of trial, the state filed a “second part of information” or “Part B” information, alleging two prior larceny convictions and charging the defendant with being a persistent larceny offender in violation of General Statutes § 53a-40 (c). On the day of the commencement of trial, the state filed a substitute information, alleging only one count of larceny in the sixth degree.

The defendant contends that, because the document charging him as a persistent larceny offender was not part of the same document as, and was not filed simultaneously with, the original information charging the substantive offense but was filed nearly seven months after the filing of that information, it was ineffective. We disagree.

The defendant correctly points out that a persistent offender charge must be included in the same information as the substantive criminal allegation. State v. Secore, 194 Conn. 692, 699, 485 A.2d 1280 (1984). There is, however, no requirement that the substantive offense and the persistent offender violation be charged simultaneously.

Practice Book § 619 provides in pertinent part: “Where the information alleges, in addition to the principal offense charged, a former conviction or convictions, such information shall be in two parts, each signed by the prosecuting authority. In the first part, the particular offense with which the accused is charged shall be set out, and in the other part the former conviction or convictions should be alleged.” Practice Book § 623 provides in pertinent part: “If the trial has not commenced, the prosecuting authority may amend the information, or add additional counts, or file a substitute information.” Practice Book § 647 provides, with respect to the two-part information filed pursuant to § 619, that “the plea and election of a method of trial shall first be taken only on the first part of the information,” and § 648 provides in pertinent part that “if the defendant pleads not guilty, prior to the commencement of trial, the clerk shall notify the defendant, in the absence of the judicial authority, of the contents of the second part of the information.”

Reading Practice Book §§ 619, 623, 647 and 648 together, we conclude that the state may amend an information to include a Part B persistent offender count prior to the commencement of trial, subject of course, to appropriate action of the trial court upon motion by the defendant. See Practice Book § 623. Our interpretation of these rules of practice is buttressed by the fact that, under our former rules of practice, the state was barred from bringing a persistent offender charge after the accused had been put to plea on a substantive offense; see Practice Book § 648 in effect prior to 1981; the 1981 amendment was intended to permit the state to bring a recidivist charge after a not guilty plea had been entered on the original information.

The state complied with the requirement to include the persistent offender charge in the original information by adding it to that information at a later time, and thereby amending that information. See Practice Book § 623. The purpose of the rule requiring that the substantive and persistent offender violations be contained in the same information “is to give the defendant adequate notice of the charges against him so that he may properly prepare his defense.” State v. Secore, supra, 701; State v. Foshay, supra, 31. Here, as in Foshay, there is no suggestion in the record that the defendant was prejudiced or unfairly surprised by the allegations contained in the second part of the information. The defendant did not object to the amendment pursuant to Practice Book § 623. Accordingly, the state properly amended its information before the commencement of trial to include a Part B persistent offender allegation.

IV

The defendant next claims that the trial court erred in having the jury which convicted him of larceny in the sixth degree, sit as the jury in the trial on the persistent larceny offender charge. “Section 840 of the Connecticut Practice Book provides that when an information is in two parts, and an accused is found guilty on the first part, the judicial authority may decide whether the trial on the second part should ‘be had to the same or to another jury.’ When the court in its discretion decides that the second part should be tried to the same jury, this decision will be reversed only where a clear abuse of discretion is demonstrated.” (Footnote omitted). State v. Lapia, 202 Conn. 509, 517, 522 A.2d 272 (1987).

The defendant argues that the court abused its discretion because the prior misconduct evidence introduced at the trial on the first part of the information was not probative of any issue presented in the trial on the second part of the information, and was especially prejudicial due to its similarity to the crimes for which the state had to prove prior convictions under General Statutes § 53a-40 (c). We disagree.

A similar claim was rejected by our Supreme Court in State v. Lapia, supra. Here, as in Lapia, “none of [the defendant’s] testimony from the first trial was introduced during his trial on the persistent [larceny] offender charge.” Id., 518. In fact, in its instructions to the jury after the trial on the second part of the information, the court instructed the jury that it “could only consider the evidence before you, and what you have is [the testimony of the clerk of the Superior Court in Bristol]. You have the two documents, State’s Exhibit A and B.” Furthermore, as in Lapia, “[d]uring trial on the second part, the court charged the jury on the defendant’s right not to testify and on the state’s burden of proving the elements of the crime beyond a reasonable doubt.” Id. Because “jurors are presumed to follow the instructions given by the judge”; State v. Williams, 202 Conn. 349, 364, 521 A.2d 150 (1987); we conclude that “the defendant has not sustained his heavy burden of proving that the court abused its discretion and that any injustice was done to him by the court’s refusal to impanel a new jury.” Id.

V

The defendant also claims that the trial court erred in denying his petition for a new trial. The defendant claimed that a new trial was required pursuant to Practice Book § 904 and General Statutes § 52-270 because (1) the defendant had obtained evidence of the purchase of the three software packages from the Radio Shack Store, (2) the existence of this evidence was not known to the defendant at the time of the trial, (3) this evidence could not be discovered through due diligence on the part of the defendant as it was in the control of another person, and (4) the new evidence is material and likely to produce a different result in a new trial.

Neither party has addressed whether this claim of error is properly before us. The defendant filed his “petition for new trial” within the technical confines of the docketed criminal case. No separate civil action was brought. A petition for a new trial is properly “instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which the new trial is sought, it is by its nature a distinct proceeding.” State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980). The defendant did not follow this procedure in the present case.

We are presented, then, with the question of whether the defendant’s failure to bring a petition for a new trial in a separate action deprived the trial court of subject matter jurisdiction to rule on the petition. The differences between a motion for a new trial and a petition for a new trial are matters of substance, not simply matters of form. See State v. Jones, 205 Conn. 723, 728-30, 535 A.2d 808 (1988). In Jones, our Supreme Court refused to review a claim regarding newly discovered evidence which was not brought pursuant to Practice Book § 904 in a separate proceeding. “The defendant must bring a petition under § 904 [in a separate proceeding instituted by writ and complaint served on the adverse party] if he wishes to seek a new trial based on newly discovered evidence.” Id., 730; State v. Asherman, supra, 144. Accordingly, the trial court should have dismissed the defendant’s petition for a new trial because it was improperly brought, and we do not review the trial court’s denial of that petition.

VI

Finally, we consider the defendant’s claim that the evidence against him was insufficient to support his conviction of larceny in the sixth degree. We disagree.

In support of this claim, the defendant argues that the state failed to prove that the software packages had not been paid for, as required to prove larceny by shoplifting; General Statutes § 53a-119 (9); and obtaining by false pretenses; General Statutes § 53a-119 (2); the modes by which the defendant was charged with larceny in the sixth degree. In evaluating the defendant’s claim, the standard is whether “ ‘[t]he jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.’ ” State v. Dumlao, 3 Conn. App. 607, 613, 491 A.2d 404 (1985), quoting State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984). In addition, the evidence must be given a conclusion most favorable to sustaining the jury’s verdict. State v. Dumlao, supra.

In this case, there was no direct evidence that there had been no payment for the software packages. The probative force of direct and circumstantial evidence, however, is the same. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We conclude that several pieces of circumstantial evidence in this case taken together, if believed by the jury, were sufficient to prove beyond a reasonable doubt that there had been no payment for the software packages.

First, the general manager of the store testified that he conducted an inventory of store items and determined that the software in issue had not left the store legally. The defendant’s argument that this testimony could not support proof of the controverted fact is based upon earlier testimony by the store’s computer department manager to the effect that the inventory search only went back as far as December, 1985, and therefore failed to preclude the possibility that the merchandise was purchased in November, 1985. The simple answer to this is that the jury could have credited the general manager’s version of the facts as more accurately and completely portraying the extent of the inventory search. Second, the computer department manager’s testimony that sales tags had not been removed from the software packages brought to him by the defendant, along with his testimony that the counter clerks at the store usually remove such tags at the time of sale, supports a reasonable inference that these software packages had never been purchased. Third, this evidence was buttressed by the testimony regarding the defendant’s prior attempted larceny, which was probative on the issue of the defendant’s criminal intent.

There is error, in part, in the form of the judgment, the order denying the defendant’s petition for a new trial is set aside and the case is remanded with direction to dismiss the defendant’s petition for a new trial. In all other respects, there is no error.

In this opinion the other judges concurred.

       “[General Statutes] See. 53a-119. LARCENY DEFINED. 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: . . . (2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person. ... (9) Shoplifting. A person is guilty of shoplifting who intentionally takes possession of any goods, wares or merchandise offered or exposed for sale by any store or other mercantile establishment with the intention of converting the same to his own use, without paying the purchase price thereof. A person intentionally concealing unpurchased goods or merchandise of any store or other mercantile establishment, either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such article with the intention of converting the same to his own use without paying the purchase price thereof.”

       Although the defendant failed to preserve this claim properly for appeal, our courts have afforded review under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because the “failure adequately to instruct the jury on each essential element of the crime might result in a due process violation implicating the fairness of the defendant’s trial.” State v. Pollitt, 205 Conn. 132, 150, 531 A.2d 125 (1987); State v. Grant, 6 Conn. App. 24, 28-29, 502 A.2d 945 (1986).

       The defendant also claims that the persistent offender charge was defective for a separate reason. He argues that, even if the persistent offender allegations became part of the original information, “both the original information and the ‘second part’ were superceded by the state’s unsolicited filing of a substitute information, which alleged only a single count of larceny in the sixth degree.” We recently rejected a similar claim in State v. Foshay, supra, 31.
      The fact that the filing of the substitute information in this case was unsolicited, and not in response to a motion for a bill of particulars, is no moment. The substitute information filed in this case was a long form information which could only have been intended to make more specific the allegations of the earlier short form information, for presentation to the jury.
      The defendant failed to raise this claim in the trial court. We decline to review it under State v. Evans, supra, because the defendant has failed to show that he was prejudiced or unfairly surprised when the second part of the information came to trial; State v. Foshay, supra, 31; and therefore has failed to show that “the record adequately supports a claim that [he] has clearly been deprived of a fundamental constitutional right and a fair trial.” State v. Evans, supra, 70.

       The defendant’s filing, entitled “Petition for New Trial,” incorrectly referenced Practice Book § 940, instead of § 904. This appears to have been a typographical error. Section 904 provides: “A request for a new trial on the ground of newly discovered evidence shall be called a petition for a new trial and shall be brought in accordance with Gen. Stat., § 52-270. The judicial authority may grant the petition even though an appeal is pending.”

       General Statutes § 52-270 provides in pertinent part: “(a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a nonsuit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in case where the parties or their counsel have not adequately protected their rights during the original trial of an action.”

       The defendant also claims that the trial court erred in instructing the jury on larceny by shoplifting because there was no evidence that a shoplifting occurred on January 12,1986. See, e.g., State v. Williams, 202 Conn. 349, 361-64, 521 A.2d 150 (1987) (holding that when a person is convicted under more than one statutory alternative, the judgment cannot stand unless the evidence was sufficient to establish guilt tinder each statutory provision upon which the trier of fact may have relied). Since we conclude that the evidence was sufficient to prove beyond a reasonable doubt that the defendant had not paid the purchase price of the software packages, this claim of instructional error is without merit.


author: Foti, J.

text:
    Isaac Kelley et al. v. Gary Montesi et al.
    (5704)
    Daly, Bieluch and Foti, Js.
    Submitted on briefs February 18
    decision released April 12, 1988

      Daniel D. SJcuret filed a brief for the appellants (plaintiffs).

      Carolyn P. Gould and Shawn G. Tiernan filed a brief for the appellees (defendants).
   Foti, J.

The plaintiffs brought this action against the defendants in two counts, claiming that the negligent operation of a motor vehicle by the named defendant had caused a rear end collision with the automobile driven by the plaintiff Isaac Kelley. The first count alleged that Isaac Kelley had suffered personal injuries as a consequence of the collision. The second count alleged that the plaintiff Nancy Kelley suffered a loss of consortium as a result of the injuries suffered by her husband in the accident. The jury found for the plaintiffs on both counts, awarding Isaac Kelley $20,000 in damages and Nancy Kelley zero damages. The plaintiffs appeal from the court’s denial of their motion to set aside the verdict claiming it was inadequate, against the evidence and against the law on the issue of damages.

The plaintiffs’ first claim is that the trial court erred in refusing to set aside the verdict awarding Isaac Kelley $20,000 in damages. In particular, they claim that evidence was presented establishing $6335 in medical expenses, $3190 in lost wages, pain and suffering, and partial disability; based on this evidence the plaintiffs assert that the award was inadequate.

“On review, our task is confined to determining whether the trial court abused its discretion in refusing to set aside the verdict. Our review involves an examination of the record in a light most favorable to sustaining the verdict. Herb v. Kerr, 190 Conn. 136, 140, 459 A.2d 521 (1983).” Taddei v. Schwarz, 12 Conn. App. 659, 660, 533 A.2d 892 (1987).

The standard of review for an appellate court is whether the damages awarded fall within the limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. Taddei v. Schwarz, supra, 660-61; Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986).

The court’s refusal to set aside a jury verdict is accorded great weight and every presumption should be given in favor of its correctness. Kalleher v. Orr, 183 Conn. 125, 127, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974). “This is so because ‘[f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than [an appellate court] can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).” Zarrelli v. Barnum Festival Society, Inc., supra, 327.

The testimony of the named plaintiff relating to his damages was substantially undermined by evidence that he had had a similar accident subsequent to the one that is the subject of this appeal, that he suffered similar injuries in the second accident, and that he had never informed his treating physicians that he had the second accident.

Thus, the jury had a reasonable basis for doubting Isaac Kelley’s claims that his injuries were caused exclusively by his collision with the named defendant. It is axiomatic that it is the jury’s function to accept or reject the credibility of witnesses. See Zarrelli v. Barnum Festival Society, Inc., supra, 326. This court will not find error in the trial court’s acceptance of a jury verdict where, as in this case, the jury could reasonably have decided as they did. Vazzano v. Slater, 6 Conn. App. 1, 4, 502 A.2d 440 (1986). The court, therefore, did not abuse its discretion by denying Isaac Kelley’s motion to set aside the verdict, as the evidence presented at trial reasonably supported that verdict.

The plaintiffs also claim that the trial court erred in refusing to set aside the jury’s verdict awarding the plaintiff Nancy Kelley zero damages for loss of consortium, although the jury found the defendants liable on this claim.

In rendering a plaintiff’s verdict with zero damages the jury finds the defendant liable, but further finds that the plaintiff has failed to prove damages. Malmberg v. Lopez, 12 Conn. App. 438, 441-42, 531 A.2d 161 (1987). “Where a plaintiff has established liability but has failed to prove actual damages, an award of nominal damages is appropriate.” Id., 442 n.2; Riccio v. Abate, 176 Conn. 415, 418-19, 407 A.2d 1005 (1979); Covey v. Wilson, 4 Conn. App. 233, 239, 493 A.2d 290 (1985). “Nominal damages means no damages. They exist only in name and not in amount.” Michael v. Curtis, 60 Conn. 363, 369, 22 A. 949 (1891), quoted in Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973). “Ordinarily, we will not grant a new trial in order to entitle a plaintiff to recover merely nominal damages. . . . The circumstances of this case do not furnish an exception to this general rule.” (Citations omitted.) Sessa v. Gigliotti, supra, 622.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs also named Montesi Volkswagen, the owner of the vehicle driven by the named defendant, as a codefendant.