author: Freedman, J.

text:
    State of Connecticut v. Pedro Ortiz
    (10585)
    Dupont, C. J., O’Connell and Freedman, Js.
    Argued November 2, 1992
    decision released January 5, 1993

      James M. Chase, deputy assistant public defender, for the appellant (defendant).

      Marjorie Allen Dauster, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Mary Reidy, assistant state’s attorney, for the appellee (state).
   Freedman, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of the crime of misconduct with a motor vehicle in violation of General Statutes § 53a-57. On appeal, the defendant claims that the trial court improperly (1) denied his motion for judgment of acquittal and (2) instructed the jury on the issue of causation. We affirm the judgment of the trial court.

The following evidence was adduced at the defendant’s trial. On May 26, 1990, at approximately 3:30 p.m., the defendant was operating his 1983 Ford Escort in a southerly direction on Prospect Street in New Haven, traveling uphill toward the intersection of Prospect and Trumbull Streets. At the same time, a motorcycle operated by Charles Wicker and bearing his six year old son, Germaine, approached the intersection from the opposite direction. As the defendant was turning left onto Trumbull Street, the motorcycle struck the passenger side of the defendant’s vehicle. Both Charles and Germaine Wicker died as a result of the collision.

The intersection of Prospect and Trumbull Streets presents an obstructed view. The degree of obstruction depends on how close one is to the top of the incline leading to the intersection and how high off the ground one is. Vision is obstructed as to objects on the opposite incline until one is near the top of the incline.

The speed limit on Prospect Street at the time of the accident was twenty-five miles per hour. Eyewitnesses agreed that the motorcycle was traveling far in excess of the legal limit. Gilberto Muniz, a rear seat passenger in the defendant’s vehicle, testified that when he saw the motorcycle approaching, it was traveling at seventy-five or eighty miles per hour. Richard Ingber, a medical student who was south of the intersection immediately before the accident, estimated that the motorcycle was traveling at fifty miles per hour. Michael Schoen, who also was south of the intersection immediately before the accident, estimated the speed of the motorcycle at fifty to sixty miles per hour. A defense accident reconstruction expert estimated that the speed of the motorcycle at the time of impact was between fifty-three and seventy-four miles per hour.

At the time of the accident, Charles Wicker did not have a special motorcycle endorsement on his driver’s license, which is required to operate a motorcycle. In addition, his driver’s license had been suspended one week before due to his failure to appear in court on a motor vehicle violation. Furthermore, according to certain eyewitnesses, the child was seated on the gas tank of the motorcycle in front of the driver. Placing a child on a motorcycle in front of the operator is both illegal and dangerous because it can interfere with the ability of the operator to control the motorcycle.

At the scene of the accident, the defendant stated that he did not see the motorcycle coming. Muniz testified that the defendant was not speeding or weaving while operating the car. He further stated that the defendant slowed to make the left turn under a green light, and that Muniz first saw the motorcycle when it was four to six feet away from the car. Ingber testified that at about one second before the motorcycle arrived at the midpoint of the intersection, the defendant’s car began to make the left hand turn. Schoen observed the car enter the intersection at normal speed while the light was green and start making the turn. As the light changed from green to yellow, Schoen observed the motorcycle hit the car.

Several witnesses testified to their observations of the defendant’s behavior at the scene of the accident. Larry Ghirardi, a New Haven paramedic and part-time constable in Old Lyme, was dispatched to the scene. Muniz pointed out the defendant to Ghirardi as the driver of the automobile, and Ghirardi approached him to determine whether he needed medical attention. Ghirardi observed that the defendant’s eyes were bloodshot and glassy, and that he smelled of alcohol. The defendant would not look directly at Ghirardi when Ghirardi was speaking to him, but stared with a fixed gaze beyond Ghirardi’s shoulder. The defendant was not standing erect, and rocked back and forth in a swaying motion. Ghirardi believed that the defendant was under the influence of alcohol. Ghirardi did not believe that the defendant was in need of medical attention or that he was in shock. Ingber approached the defendant to determine if he needed assistance. The defendant appeared stable and was able to respond to questions, but appeared dazed and was staggering. Ingber did not attribute this condition to any particular cause. Alyson Blake, a nurse who witnessed the collision, talked to the defendant after ambulance personnel arrived and relieved her of responsibility for the injured child. She believed that because the defendant was very upset, nervous and anxious he was in a state of shock, but not medical shock. She was not very close to the defendant and did not notice an odor of alcohol. It did not occur to Blake that the defendant was under the influence of alcohol.

Juan Mulero, an investigating officer who responded to the accident, testified that after the defendant stepped forward to identify himself to Mulero as the driver of the car, Mulero noted that the defendant’s hair and clothing were disheveled, he was unshaven, and his eyes bloodshot. Mulero had to ask the defendant several times for his license, registration and insurance card before the defendant responded. The defendant looked at the officer with a dazed stare. Mulero detected an odor of alcohol on the defendant’s breath. When the two went to the defendant’s car to retrieve the documents, the defendant walked very slowly. The officer stated that it was not a normal pace. At the vehicle, the officer noted an open beer bottle on the front console, and empty beer containers in the backseat.

Thereafter, Officer Vincent Vescovi, Jr., was called to the scene to administer field sobriety tests to the defendant. On his arrival, Vescovi observed that the defendant’s pants were falling down and his eyes were bloodshot and glassy. The defendant looked around as if he was not paying attention to what Vescovi was saying. Vescovi informed the defendant that he was going to conduct field sobriety tests, and the defendant responded that that was fíne and that all he had had was two or three beers. The defendant’s speech was slurred, and his breath smelled of alcohol.

Vescovi administered the field sobriety tests with the assistance of Mulero, who repeated the instructions to the defendant in Spanish. The defendant had difficulty following the instructions. He had difficulty maintaining his balance during the one leg stand test and the heel-to-toe walk test. He could not walk touching heel to toe or in a straight line. The defendant exhibited jerkiness during the horizontal gaze nystagmus test. Mulero and Vescovi concluded that the defendant failed the field sobriety tests and was under the influence of alcohol, and placed him under arrest.

The defendant consented to a blood test, again stating that he had had only two or three beers. The defendant was taken to Yale-New Haven Hospital, where two blood samples were drawn at a twenty-five minute interval.

Sanders Hawkins, chief toxicologist for the state, testified that the defendant’s blood was analyzed at the state forensic lab and that the first sample had a blood alcohol content of 0.19 and that the second sample had a blood alcohol content of 0.18. Extrapolating back to the time of the collision, Hawkins estimated that the defendant’s blood alcohol content would have been between 0.19 and 0.24. To achieve this blood alcohol level, Hawkins estimated that the defendant had to have consumed between nine and twelve bottles of beer. Hawkins stated that the defendant could not have achieved that level of blood alcohol after consuming only two or three beers. Furthermore, Hawkins testified that with a blood alcohol level of between 0.19 and 0.24, the average person would be considerably intoxicated, would not be able to think clearly, would probably slur his speech and stagger, and would have impaired eye-hand coordination and motor skills. Hawkins also testified that such a person’s reaction time would be slowed; he might not be able to take appropriate action to avoid hitting something; and the alcohol level would affect his ability to judge distances of approaching objects.

Officer Robert Benson prepared a sketch map of the accident scene. Benson opined that the location of the car after the accident indicated that the defendant had tried to cut the corner when he initiated his left turn at the intersection. Edmund Sullivan, the defendant’s accident reconstruction expert, testified that the impact of the motorcycle into the car drove the car sideways five to ten feet, and that the defendant had in fact properly initiated the turn. An eyewitness testified that the car had been driven sideways by the impact.

After considering the evidence, the jury acquitted the defendant of two counts of manslaughter in the second degree with a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 53a-56b. The jury found him guilty of two counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57. After the court denied the defendant’s posttrial motion for judgment of acquittal notwithstanding the verdict, the defendant was sentenced to a term of incarceration and a period of probation. This appeal followed.

I

The defendant claims that the trial court should have granted his motion for a judgment of acquittal because the evidence before the jury was insufficient to sustain the verdict of guilty of misconduct with a motor vehicle. “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.” General Statutes § 53a-57 (a). The defendant argues that the evidence failed to show that (1) he acted with criminal negligence and (2) his conduct was the proximate cause of the victims’ deaths. We disagree.

An accused has a fundamental right to an acquittal under both the United States constitution and the Connecticut constitution where the state has failed to prove beyond a reasonable doubt each and every element of the crime charged. In re Winship, 397 U.S. 358, 362, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Hill, 201 Conn. 505, 512, 523 A.2d 1252 (1986). Appellate review of a claim of insufficiency of the evidence is a twofold task: We must first review the evidence by construing it in the light most favorable to sustaining the verdict. We must then determine whether, on the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established guilt beyond a reasonable doubt. In this process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. State v. Marra, 215 Conn. 716, 726, 579 A.2d 9 (1990).

Criminal Negligence

General Statutes § 53a-57 (a) provides that “[a] person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.” General Statutes § 53a-3 (14) provides that “[a] person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” “[CJonviction of misconduct with a motor vehicle requires proof of the mental state involved in criminal negligence . . . .” State v. Kristy, 11 Conn. App. 473, 482, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). Proof of that mental state requires that “the failure to perceive [a substantial and unjustifiable risk that death will result] must be a gross deviation from the standard of a reasonable man; thus, it requires a greater degree of culpability than the civil standard of negligence.” Connecticut General Statutes Annotated § 53a-3 (West 1985), Commission Comment.

The defendant argues that his conduct in the operation of the car “constituted ordinary, garden variety negligence” and was not of the “egregious nature required by the statute, unless one adopts a rule that the act of getting behind the wheel while intoxicated is per se misconduct.” Further, the defendant asserts that the legislative history of § 53a-57 refutes the view that intoxication proves criminal negligence. While we agree with the defendant’s statutory analysis, we do not believe it alters our conclusion that the jury could reasonably have concluded that the defendant was criminally negligent in the operation of a motor vehicle.

Prior to 1982, General Statutes (Rev. to 1981) § 53a-57 provided that “[a] person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle or in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. . . .” (Emphasis added.) Thus, the statute provided two alternative bases for criminal liability. State v. Singleton, 174 Conn. 112, 117, 384 A.2d 334 (1977), cert. denied, 440 U.S. 947, 99 S. Ct. 1425, 59 L. Ed. 2d 635 (1979).

In 1982, Public Acts No. 82-403 created two statutes where one had existed previously. All reference to intoxication was removed from § 53a-57, a class D felony. The new statute, General Statutes (Rev. to 1983) § 53a-56b (a), a class C felony, provided that “[a] person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or both.” The differences between the two offenses are significant; the statutes do not stand in relation of greater and lesser included offenses. See State v. Kristy, supra. The essential questions for the trier of fact on a charge of manslaughter in the second degree with a motor vehicle while under the influence of intoxicating liquor are “whether the defendant was [under the influence of intoxicating liquor] while operating a motor vehicle and whether the death of another person was a consequence of that [conduct]. . . . [By contrast] misconduct with a motor vehicle requires proof of the mental state involved in criminal negligence which is not an element of manslaughter.” Id., 482. Thus, in a prosecution for misconduct with a motor vehicle in violation of General Statutes § 53a-57, proof that the driver was under the influence of intoxicating liquor is neither necessary nor sufficient to warrant conviction because it is the driver’s mental state that is in issue. Id., 483. The essential questions for the trier of fact on a charge of misconduct with a motor vehicle are whether the defendant operated a motor vehicle with criminal negligence and whether that conduct caused the death of another person. Nevertheless, the fact that a driver was under the influence of intoxicating liquor can be relevant, if not highly relevant, in the jury’s consideration of those questions.

For this reason, although the defendant correctly points out that operation of a motor vehicle while under the influence of intoxicating liquor is not per se criminal negligence, a jury may still conclude, under the circumstances of a particular case, that the defendant was criminally negligent when he operated his vehicle while under the influence of intoxicating liquor. Thus, in State v. Dawson, 23 Conn. App. 720, 723-24, 583 A.2d 1326 (1991), the evidence showed that the defendant operated his motor vehicle after consuming enough alcohol to achieve a blood alcohol level of 0.16, proceeded at a rate of speed far greater than the posted speed limit, drove onto the soft shoulder of an s-curve, reentered the roadway, locked his brakes and skidded 120 feet across the center line into the victim’s car. We noted that, on the basis of the evidence adduced in that case, the jury could have reasonably found, beyond a reasonable doubt, that the defendant failed to perceive that he was taking a substantial and unjustifiable risk of being unable to control his motor vehicle and killing another person both in driving his motor vehicle with an elevated blood alcohol content and in driving at an excessive speed. Id., 723. Yet, we concluded that “the risks of being unable to control his car after drinking and of killing another while on the road were such that the failure to perceive them constituted a gross deviation from the standard of care of a reasonable person.” (Emphasis added.) Id., 724.

Likewise, in the present case, there was sufficient evidence from which a jury could reasonably conclude beyond a reasonable doubt that the defendant was criminally negligent. The jury could have reasonably concluded that some time before 3:30 p.m. on May 26, 1990, the defendant consumed sufficient alcohol, equal to between nine and twelve beers, to bring his blood alcohol content to between 0.19 and 0.24, that the alcohol he consumed affected his coordination and motor skills, that he then entered his vehicle to drive around New Haven, and in doing so he failed to perceive the substantial and unjustifiable risk that he would be unable to take proper safety precautions, to judge the speed of approaching vehicles, and to react appropriately to traffic hazards, and that he could thereby kill another person. In addition, the jury could also have concluded that the defendant cut the corner when making a left turn onto Trumbull Street, despite the fact that his view of oncoming traffic was obscured; that he failed to observe or judge the speed of the approaching motorcycle properly; and that in doing so failed to perceive the substantial and unjustifiable risk that he would collide with an oncoming vehicle and kill another person. Finally, the jury could reasonably have concluded that the defendant’s failure to perceive these risks was a gross deviation from the standard of care that a reasonable person would observe in the situation. Consequently, the defendant’s argument to the contrary notwithstanding, there was ample evidence to support the jury’s determination that the defendant’s conduct in the operation of his motor vehicle constituted criminal negligence.

Causation

The defendant also claims that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that the defendant’s conduct caused the deaths of the Wickers. He argues that both the negligent conduct of the motorcycle driver and the fact that no witnesses observed similar misconduct on his part in the operation of his vehicle, preclude a finding that his conduct proximately caused the deaths. We do not agree.

In State v. Alterio, 154 Conn. 23, 220 A.2d 451 (1966), our Supreme Court considered a statute quite similar to § 53a-57. The Alterio court concluded that “[i]t was the state’s burden to prove that a proximate cause of the death was the unlawful acts of the defendants . . . [and that] ‘[e]very person is held to be responsible for the natural consequences of his acts, and if he commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes cooperated to produce that result.’ State v. Leopold, [110 Conn. 55, 61, 147 A. 118 (1930)].” (Citations omitted.) State v. Alterio, supra, 29-30; see also State v. Spates, 176 Conn. 227, 233, 405 A.2d 656 (1978), cert. denied, 440 U.S. 922, 99 S. Ct. 1248, 59 L. Ed. 2d 475 (1979). “An act or omission to act is the proximate cause of death when it substantially and materially contributes, in a natural and continuous sequence, unbroken by an efficient, intervening cause, to the resulting death.” Id., 234. The contributory negligence of the victim does not prevent proof of causation, unless it constitutes an independent and efficient cause or an intervening and efficient cause. State v. Kwaak, 21 Conn. App. 138, 145-46, 572 A.2d 1015, cert. denied, 215 Conn. 811, 567 A.2d 540 (1990).

In the present case, the jury could reasonably have found, beyond a reasonable doubt, that the criminally negligent conduct of the defendant while operating a motor vehicle caused the deaths of the Wickers. The jury could have concluded that but for the defendant’s failure to negotiate the turn properly and his failure to yield the right-of-way to the approaching motorcycle, the car and the motorcycle would not have collided. The jury could also have reasonably found that the negligent conduct of Charles Wicker, even if such conduct contributed to the deaths, was neither an independent and efficient, nor an intervening and efficient cause. The defendant’s argument to the contrary notwithstanding, we believe that the jury, aftér considering all of the evidence, could reasonably have found that had the defendant carefully looked for approaching traffic, appropriately assessed the speed of the oncoming motorcycle, and quickly responded to the existing and foreseeable traffic hazard, his car would not have been crossing the northbound lanes of Prospect Street at the critical moment, and the speeding motorcycle would have passed by safely. The criminally negligent conduct of the defendant, therefore, was a substantial link in the unbroken chain of events that resulted in the deaths of the Wickers, and the jury properly held the defendant answerable for the consequences of his conduct. State v. Spates, supra.

Accordingly, the evidence was sufficient to sustain the jury’s verdict of guilty on the two counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57. We, therefore, conclude that the trial court properly denied the defendant’s motion for judgment of acquittal notwithstanding the verdict.

II

The defendant next challenges the trial court’s instruction on the concept of proximate cause. The trial court instructed the jury on causation: “Proximate cause is defined in criminal law as not necessarily the last act that caused or act in point of time nearest to death; the concept of proximate cause incorporates the notion that an accused may be charged with a criminal offense even though his acts were not the immediate cause of death. An act or omission to act is a proximate cause when it substantially and materially contributes, in a natural and a continuous sequence, unbroken by an efficient, intervening cause, to the resulting deaths. It is the cause without which the death would not have occurred and the predominating cause, and a substantial factor, from which death follows as a natural, direct and immediate consequence. In this case, obviously both sides have a different view as to what the cause of the death was and that is as a trier of fact what you determine.” The defendant concedes, as he must, that this is a proper definition of the concept of proximate cause. See State v. Spates, supra, 233-34; State v. Kwaak, supra, 145-46. The defendant argues, however, that the instruction was incomplete, and therefore failed to instruct the jury properly, because it did not include the language of his request to charge on the issue of causation. We disagree.

“While a request to charge that is relevant to the issue of the case and is an accurate statement of the law must be given, the trial court is not required to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request. . . . Thus, the trial court properly discharges its duty when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” (Citation omitted; internal quotation marks omitted.) State v. Bunker, 27 Conn. App. 322, 328, 606 A.2d 30 (1992). Under this standard of review, we conclude that the trial court properly-instructed the jury.

The defendant’s request to charge is not a correct statement of the law of causation. While it is correct that proof beyond a reasonable doubt of each element of an offense must exclude reasonable hypotheses of innocence; see, e.g., State v. Hammond, 221 Conn. 264, 288, 604 A.2d 793 (1992); it does not follow that proof beyond a reasonable doubt that the defendant caused the victims’ deaths must exclude any reasonable possibility that the victims’ conduct was also a cause of the deaths. Rather, the state fails in its proof that an accused’s criminally negligent conduct caused the death of another when the jury finds “either that the defendant’s [criminal negligence] was not the actual ‘but for’ cause of the victim’s death or that there was an ‘independent and efficient cause’; State v. Alterio, supra [30]; or an intervening and efficient cause. State v. Spates, supra.” State v. Kwaak, supra, 146. Contrary to the defendant’s argument, it is well settled that “if [a person] commits a felonious act and death follows, it does not alter its nature or diminish its criminality to prove that other causes co-operated to produce that result.” (Internal quotation marks omitted.) Id., 145.

The defendant argues, nonetheless, that in State v. Kwaak, supra, 161, we approved of a jury instruction that required that “ ‘[w]hen as here there is some evidence from which you might conclude that the vehicular accident was caused by some factors, other than the defendant’s intoxication, the state must prove to you beyond a reasonable doubt that none of these factors could have caused the accident.’ ” (Emphasis in original.) The defendant, however, misreads our approval of that language. The quoted language was referred to in that portion of State v. Kwaak, supra, wherein we considered a challenge to the trial court’s instruction on reasonable doubt. The trial court had improperly instructed the jury that “the evidence must exclude all other reasonable probabilities as to the cause of the vehicular accident other that the alleged intoxication of the defendant.” (Emphasis added.) Notwithstanding this erroneous instruction, we concluded that the court’s charge, when taken as a whole, did not impermissibly dilute the state’s burden of proof. The improper use of the word “probabilities” instead of “possibilities” was deemed to be harmless in the context of the charge as a whole, in part because the court had correspondingly increased the state’s burden of proof in stating that “ ‘the state must prove to you beyond a reasonable doubt that none of these [other, nonculpable] factors could have caused the accident.’ ” Id. Consequently, we do not read this portion of the Kwaak decision to affect in any way the well settled principle, stated elsewhere in the Kwaak decision, that “the causation element requires that the state prove beyond a reasonable doubt, first that the death of a person would not have occurred ‘but for’ the defendant’s [culpable conduct], and second, that the defendant’s [conduct] substantially and materially contributed to the death of a person in a natural and continuous sequence, unbroken by an efficient, intervening cause.” (Emphasis added.) Id., 146.

Accordingly, we conclude that the trial court properly instructed the jury on all aspects of the concept of proximate cause.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-57 (a) provides: “A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”

       During the trial, defense counsel stipulated that “the cause of death was trauma due to a motorcycle or a motor vehicle accident.”

       General Statutes § 53a-56b (a) provides: “A person is guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”

       General Statutes § 53a-56b (a) was amended in 1985 to its present language. See footnote 3, supra.

       Although State v. Kristy, 11 Conn. App. 473, 482, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987), was decided under the prior version of General Statutes § 53a-56b; see footnote 4, supra; we do not believe that this change affects the conclusion reached in Kristy concerning the relationship between §§ 53a-56b and 53a-57.
      No. 85-147 of the 1985 Public Acts “remove[d] the language in [General Statutes] § 53a-56b . . . that referred to a person’s being ‘intoxicated’ and instead . . . inserted] the requirement that a person has to be ‘under the influence’ in order to ‘get tough on drunk drivers’ and to avoid the result . . . where an individual escaped liability under the law because . . . the individual was not ‘intoxicated’ even though he may have been under the influence.” State v. Kwaak, 21 Conn. App. 138, 143-44, 572 A.2d 1015, cert. denied, 215 Conn. 811, 576 A.2d 540 (1990); see also Sanders v. Officers Chib of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). This change in statutory language, however, does not alter the basis of this court’s conclusion in State v. Kristy, supra, 481-84, that there are differences between §§ 53a-56b and 53a-57 and that the two statutes do not stand in relation of greater and lesser included offenses. Consumption of alcohol, whether to the point of influence or intoxication, is not required to prove a violation of § 53a-57, while proof of a defendant’s mental state still plays no part in a violation of § 53a-56b.

       In his reply brief, the defendant suggests that “the jury, by rendering a not guilty verdict on the manslaughter charge, determined either that the defendant was not intoxicated, or that his intoxication did not cause the deaths of the Wickers.” We do not agree. Simply put, collateral estoppel principles do not apply in a single trial to preclude a verdict of guilty on an offense which includes elements in common with an offense for which the jury has returned a verdict of not guilty. See State v. Aparo, 223 Conn. 384, 391-92, 614 A.2d 401 (1992); State v. Bailey, 209 Conn. 322, 344-45, 551 A.2d 1206 (1988); State v. Jackson, 194 Conn. 241, 245, 478 A.2d 1018 (1984); State v. Stevens, 178 Conn. 649, 653-56, 425 A.2d 104 (1979). Consequently, we may rely on evidence of alcohol consumption and its effects in our consideration of whether the evidence was sufficient to sustain the defendant’s conviction of misconduct with a motor vehicle.

       The statute under consideration in Alterio provided in pertinent part that “any person operating a motor vehicle upon the highways of this state who, in consequence . . . of gross negligence, causes any loss of life” shall be subject to the penalty provided. State v. Alterio, 154 Conn. 23, 25, 220 A.2d 451 (1966).

       The defendant submitted the following written request to charge on the issue of causation in the context of the manslaughter charge: “Proof of causation must be established by sufficient evidence to remove the issue from the field of surmise, conjecture, guesswork and speculation. ... In this case, the evidence must exclude all other reasonable possibilities as to the cause of the accident other than the alleged intoxication of the driver.
      “There is evidence that the Wicker motorcycle was obscured from the defendant’s vision as he approached the intersection. There is also evidence alleging that the motorcycle was travelling at a high rate of speed, and that'the passenger was seated in front of the motorcycle operator, which may or may not have interfered with the operator’s ability to control his motorcycle. You are instructed that you may consider these claims as evidence of the cause of the accident, independent of the alleged intoxication of the defendant. When, as here, there is some evidence from which you might conclude that the accident was caused by some factors other than the defendant’s alleged intoxication, the State must prove to you, beyond a reasonable doubt, that none of these factors could have caused the accident.”
      Although we are unable to locate any written requests to charge in the trial court file, the defendant asserts in his brief that this request to charge was filed with the trial court and the state does not dispute this assertion. We therefore consider that the defendant has adequately preserved this claim for our review. See Practice Book § 852.

       The trial court adequately and exhaustively instructed the jury on this concept in its instructions on reasonable doubt.

       As a corollary to his challenge to the court’s instruction on causation, the defendant claims that the trial court improperly instructed the jury that it must determine “whether the state has proven beyond a reasonable doubt that this accident was caused as a consequence of intoxication.” (Emphasis added.) After the defendant excepted to the instruction, the court reinstructed the jury: “[I]n my comments regarding manslaughter with a motor vehicle on causation I mentioned ‘accident’ and not ‘death,’ but obviously under the statute a death has to result. In this case, I think it is factually supported there was an accident and two deaths resulted, so the fact of the causation and the deaths I think the testimony supports that as a result of the accident there were two deaths.” (Emphasis added.) The defendant claims that the court’s supplemental instruction “reinforced the original misstatement [and] did so in wording that could have led the jury to believe the court was finding causation as a fact, which was tantamount to directing a verdict [of guilty]." We do not agree.
      Although not a model of clarity, the court’s supplemental instruction, when read in conjunction with the entire jury charge, adequately informed the jury that it was required to find that the defendant’s culpable conduct caused the deaths, not simply that it caused an accident. In light of the parties’ stipulation that the victims died as a result of the collision between the car and the motorcycle; see footnote 2, supra; however, the defendant’s remaining claims regarding any alleged impropriety in the supplemental instruction are without merit. As we have already concluded, the jury was fully and adequately instructed on the element of causation. The challenged supplemental instruction did not undermine those otherwise proper and complete instructions.


source: Caselaw Access Project

author: Foti, J.

license: Public Domain

text:
    State of Connecticut v. Istvan Toth
    (10387)
    Daly, Foti and Lavery, Js.

      Argued September 16, 1992
    decision released January 5, 1993

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and C. Robert Satti, Jr., assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant, Istvan Toth, was charged by substitute information with the crimes of possession of cocaine and heroin with intent to sell in violation of General Statutes § 21a-277 (a) and conspiracy to violate the state dependency producing drug law in violation of General Statutes §§ 53a-48, 21a-277 (a), and 21a-279 (a) and (c). Following a jury trial, the defendant was found not guilty of the possession count but guilty of the conspiracy count. The trial court sentenced the defendant to a twelve year prison term.

In this appeal from the judgment of conviction, the defendant claims that the trial court improperly (1) denied his motion to suppress certain evidence obtained during unreasonable searches and seizures, (2) failed to define an essential element of the offense of conspiracy as it was alleged in the information, and (3) failed to define adequately the overt act element of the offense of conspiracy. We affirm the trial court’s denial of the motion to suppress, but reverse the judgment of conviction on the basis of the trial court’s failure to define in its jury instructions an essential element of the crime of conspiracy as it was alleged in the information.

The state’s case was premised on the defendant’s alleged involvement in a large-scale drug trafficking operation taking place in Bridgeport and surrounding towns. In June, 1989, a first time confidential informant advised Bridgeport police detectives Gladys Doran and Rafael Villegas that the defendant was selling heroin from various locations in Bridgeport and Stratford. The informant said he had purchased heroin from the defendant on dozens of occasions at these locations. The defendant was put under surveillance and during the week of June 11,1989, the informant, pursuant to Doran and Villegas’ instructions, went to two of the Bridgeport locations, 57 Westfield Avenue, the home of Robert Petrino, and 900 Wood Avenue, the home of Leon Goulet. At both locations, the informant purchased cocaine from Petrino. Later that week, on June 13,1989, Doran and Villegas observed the defendant drive to 57 Westfield Avenue in a blue Oldsmobile, enter Petrino’s first floor apartment, leave after five or six minutes, then drive by Goulet’s home at 900 Wood Avenue, enter that home and leave shortly thereafter.

On June 20, 1989, Doran and Villegas submitted three substantially similar affidavits and applications for search warrants to the Superior Court, requesting authorization to search the defendant’s person, his apartment at 28 Newport Avenue in Stratford, and his mother’s blue Oldsmobile. Simultaneously, warrants were sought to search the homes of Joel Campofiore, Leon Goulet and Robert Petrino. The items sought under each warrant specifically related to the crime of possession of narcotics with intent to sell. All of the requested warrants were issued by the reviewing magistrate.

On June 22, 1989, Stratford and Bridgeport police officers executed a search of the defendant’s apartment. They seized a small amount of marihuana from a bedroom dresser, a police scanner capable of receiving radio signals from both the Stratford and Bridgeport police departments, and two separate amounts of cash totaling approximately $2400 and $52.

On June 22 and June 27, 1989, Fairfield police conducted drive-by surveillance of the Fairfield home of Joel Campofiore, at 74 Rhode Island Avenue. On both occasions they noticed a 1982 blue Oldsmobile registered to the defendant’s mother parked in front of the residence. At trial, a neighbor testified that on several occasions he had seen the driver of a blue car stop in front of Campofiore’s home, enter it, stay for about ten minutes and then leave, at times carrying something. The driver would sometimes return several hours later, reenter the house, leave again, sometimes carrying small items.

On June 29, 1989, members of the Bridgeport, Fair-field and Trumbull police departments jointly executed a search warrant at Campofiore’s home. The search yielded a large quantity of drugs consisting mostly of cocaine, as well as some heroin and marihuana. The drugs were taken from a variety of locations in the home, including a stereo speaker, a kitchen cabinet, and the agitator of the washing machine. Also seized was a video tape that was later entered into evidence and shown to the jury. At the time of the search, Campofiore was arrested a few blocks from his home, and marihuana was seized from his truck.

Campofiore, who testified on behalf of the state as part of a plea bargain agreement, stated at trial that the defendant, a long time friend, had a key to the Rhode Island Avenue home because he kept his motorcycle there. He also testified that all of the drugs seized during the search of that home belonged to the defendant, who had put them there, and that he, Campofiore, was trying to sell the drugs for the defendant. Campofiore admitted to using cocaine supplied by the defendant and testified that the defendant told him that he could supply Campofiore with heroin. The defendant, Campofiore testified, was a heroin addict who supported his habit by selling drugs.

The video tape seized by police during the search of Campofiore’s home recorded a meeting between the defendant, Campofiore and Joseph Mandel. The meeting was recorded by Campofiore and took place five or six months before the house was searched. The tape shows Campofiore explaining that he and the defendant would give MandeF$500 worth of drugs to sell every week and that Mandel could keep $100 and return $400. During this conversation, the defendant is seen nodding his head up and down. The film shows the defendant leaving, and then Campofiore and Mandel snorting cocaine that Campofiore testified the two had obtained from the defendant.

During the search of Campofiore’s home, Bridgeport police detectives Villegas and William Perez observed the defendant drive up to the house. As he approached, he stopped suddenly, backed up and sped away. The officers, with strobe lights and sirens on, gave chase, but lost sight of the defendant as they approached an entrance ramp to Interstate 95. Soon after, the defendant was stopped by Bridgeport police. Pursuant to separate warrants, both the defendant and his mother’s car were searched. Nothing was taken from the car; $497 was taken from the defendant’s person.

I

We first address the propriety of the trial court’s denial of the defendant's motion to suppress evidence seized pursuant to search warrants executed on June 22 and June 29, 1989. The defendant claims that the trial court incorrectly ruled that the warrant affidavits established probable cause to search, in violation of his right to be free from unreasonable search and seizure under the fourth and fourteenth amendments to the United States constitution and article first, § 7, of the Connecticut constitution. Specifically, the defendant claims that the warrant affidavits, which relied largely on information obtained from confidential informants, including a first time confidential informant, were fatally flawed by the absence of any reference to the informants’ bases of knowledge and reliability, and are thus based on “mere suspicion.” As such, the defendant claims, they cannot pass constitutional muster under the “totality of the circumstances” standard set forth in Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), and adopted by our Supreme Court in State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). The defendant properly preserved this claim for appellate review.

We first set forth the standard applicable to review of the magistrate’s probable cause determination. “When a search warrant affidavit is based on information provided to the police by confidential informants, the magistrate should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate. Where the circumstances for finding probable cause are detailed, where a substantial basis for crediting the source of information is apparent, and when a magistrate has in fact found probable cause, the reviewing court should not invalidate the warrant by application of rigid analytical categories.” State v. Barton, supra, 544-45. On the other hand, “[i]f a warrant affidavit does not provide a substantial basis for the finding of probable cause, then evidence or contraband seized in the execution of that warrant will be suppressed, even when the officer executing the warrant has relied in good faith on its authority. State v. Marsala, 216 Conn. 150, 171, 579 A.2d 58 (1990).” Id., 545.

Our own scope of review, in determining whether a substantial factual basis was demonstrated for the issuing authority to find probable cause to issue a warrant, “is limited to the facts that appear within the four corners of the affidavit or facts that may properly be inferred from those facts.” State v. Anziano, 26 Conn. App. 667, 672, 603 A.2d 415 (1992). “Our role ‘is to determine whether the affidavit at issue presented a substantial factual basis for the magistrate’s conclusion that probable cause existed.’ State v. Johnson, [219 Conn. 557, 565, 594 A.2d 933 (1991)].” Id.

“Probable cause, broadly defined, comprises such facts as would reasonably persuade an impartial and reasonable mind not merely to suspect or conjecture, but to believe that criminal activity has occurred. . . . It is a flexible common sense standard that does not require the police officer’s belief to be either correct or more likely true than false. . . . There must be facts and circumstances within the officer’s knowledge, and of which he has trustworthy information sufficient to justify the belief of a reasonable person that an offense has been or is being committed.” (Citations omitted; internal quotation marks omitted.) State v. Stevens, 26 Conn. App. 805, 810-11, 603 A.2d 1203, cert. granted, 221 Conn. 926, 608 A.2d 691 (1992).

When an affidavit in support of a search warrant is based on information supplied by confidential informants, the test to be applied is whether the “totality of the circumstances” supports the existence of probable cause. Illinois v. Gates, supra; State v. Barton, supra. Even under this test, however, the confidential informant’s “basis of knowledge” and “reliability” remain highly relevant to the determination of probable cause.

We now examine the warrant affidavits challenged by the defendant in light of these standards. We agree that the affidavits do not specifically state the informants’ bases of knowledge or explicitly indicate how the affiants determined that the tips were reliable. Probable cause, however, “does not depend upon the incantation of certain magic words.” State v. Barton, supra, 549. We conclude that there were substantial facts and circumstances in the affidavits from which the magistrate could reasonably infer that the informants’ statements were based on personal knowledge and that these statements were reliable.

The affidavits stated that several informants whose identities were not disclosed had described the defendant as the head of a large scale heroin trafficking operation with numerous dealers working for him selling drugs from various locations. The informants had named Petrino as one of the dealers. The affiants then met with one of the informants, who corroborated the other informants’ characterization of the defendant as the distributor of the drugs and of Petrino and Goulet as his dealers. This first time informant indicated that he had accompanied the defendant to the defendant’s residence, where the defendant picked up packages for delivery. He also stated that the defendant had delivered bundles of drugs to him.

We conclude that the affidavits contained facts providing a substantial basis for the magistrate to infer that this informant’s tip was reliable and based on personal knowledge. The informant was not anonymous; his identity was not disclosed. “Because his identity was known to the police, the informant could expect adverse consequences if the information that he provided was erroneous. Those consequences might range from a loss of confidence or indulgence by the police to prosecution for the class A misdemeanor of falsely reporting an incident under General Statutes § 53a-180, had the information supplied proved to be a fabrication.” State v. Barton, supra, 550-51. It was against the informant’s penal interest to offer this tip to the police. The informant had admitted that he had obtained illegal narcotics numerous times from the defendant and his dealers. The fact that he was a first time informant does not necessarily make his tip less reliable. Were police unable to rely on information obtained from first time informants, they would be deprived of an important resource in their criminal investigations.

Even if “the suspicions engendered by [the] informant’s tip would not have independently justified the issuance of a warrant . . . ‘the magistrate was not required to disregard the tip altogether, but could consider whether the tip and the [information gathered by independent police] investigation together “bridged the gap” between mere suspicion and probable cause.’ State v. Johnson, [supra, 565]; State v. Delmonaco, 194 Conn. 331, 341, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984).” State v. DeFusco, 27 Conn. App. 248, 253-54, 606 A.2d 1, cert. granted, 222 Conn. 910, 608 A.2d 693 (1992). Here, there was an independent investigation that corroborated much of the first time informant’s tip. “Corroboration of an informant’s tip by independent police information has long been considered critical in determining probable cause. McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967); Draper v. United States, 357 U.S. 307, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959).” State v. Hunter, 27 Conn. App. 128, 134, 604 A.2d 832 (1992). The informant had described the defendant as using his car to deliver drugs for sale to various dealers, including Petrino and Goulet. The affidavits state that Bridgeport police had conducted surveillance of the defendant and observed him driving to Petrino’s and Goulet’s homes, stopping for short periods, and then leaving. This was consistent with the informant’s description of the defendant’s role as distributor of the drugs in this operation. It was not unreasonable for the magistrate to infer from these facts that the informant had personal knowledge that the defendant was using his car to deliver drugs for sale to various locations.

The first time informant conducted two controlled buys of cocaine under the direction of the affiants at Petrino’s and Goulet’s homes, two of the same locations at which other informants had said that the defendant stored drugs. The circumstances surrounding these controlled buys matched the information previously supplied by the informant regarding the defendant’s method of operation, suggesting the informant did, in fact, have personal knowledge of the numerous earlier drug sales he claimed the defendant had made. This bolstered the first time informant’s reliability; see State v. Rodriguez, 27 Conn. App. 307, 320, 606 A.2d 22 (1992); and helped establish his “general truthfulness or credibility.” State v. Johnson, supra, 568. Based on these facts, the inference drawn by the. magistrate that the informant had firsthand knowledge of the defendant’s activities was not unreasonable.

The defendant argues that because the affidavits fail to provide specific dates and times of the numerous drug purchases referred to by the first time informant, they are based on “mere speculation.” We do not agree that this informant’s failure to provide exact dates of the drug purchases he had made from the defendant was fatal to the affiants’ reliance on his information. The “business of dealing in illegal drugs often involves a course of conduct which continues over a long period of time . . . and is usually considered to be a regenerating activity. . . . Because the affidavit as a whole clearly depicts narcotics trafficking carried on continuously over a period of months, and narcotics trafficking typically occurs for extended periods of time, the temporal factors are not as critical to the determination of probable cause and do not require the magistrate wholly to exclude this tip from his consideration.” (Citations omitted; internal quotation marks omitted.) State v. Rodriguez, supra, 319. Although the first time informant’s claim that the defendant had sold drugs “numerous times” was nonspecific, it indicated that the alleged drug sales were an ongoing activity. This information was then corroborated by the two controlled buys, and information given by other confidential informants to Bridgeport detectives, as well as information that the defendant was the subject of continuing investigations by both the Statewide Narcotics Task Force and the special services (narcotics) unit of the Stratford police department.

The defendant further argues that the warrant affidavits do not contain sufficient details to support a warrant to search his home. The defendant makes much of the fact that the controlled buys occurred not at his home, but at Petrino’s and Goulet’s. “In dealing with large scale drug conspiracies, it is reasonable to conclude that the participants will maintain certain records and supplies in their homes.” State v. Vallas, 16 Conn. App. 245, 262, 547 A.2d 903 (1988), aff’d sub nom. State v. Calash, 212 Conn. 485, 563 A.2d 660 (1989). “Actual observations of illegal activity or contraband in the premises to be searched . . . are not required to establish probable cause.” (Internal quotation marks omitted.) State v. Diaz, 27 Conn. App. 427, 432, 607 A.2d 439, cert. granted, 223 Conn. 903, 610 A.2d 177 (1992). Here, the first time informant did not indicate that the defendant sold drugs directly out of his home, but that he used his home to warehouse the drugs. He also indicated that he had seen the defendant pick up drugs from his home for delivery elsewhere. In view of the facts and circumstances, it was not unreasonable for the magistrate to find there was probable cause to search the defendant’s home.

“Although the confidential informant was not specifically shown to be reliable or trustworthy, the information derived from all sources and corroborated by police surveillance [and investigation] reasonably allowed the issuing authority to conclude that the information supplied by the informants presented a substantial factual basis on which to find that probable cause existed.” State v. Marsala, 27 Conn. App. 291, 296, 605 A.2d 866, cert. granted, 223 Conn. 902, 610 A.2d 177 (1992). The “totality of the circumstances” presented in the affidavits therefore supports the trial court’s denial of the defendant’s motion to suppress. State v. Barton, supra; see Illinois v. Gates, supra.

II

The defendant next claims that the judgment of conviction must be reversed because the trial court improperly failed to define an essential element of the crime of conspiracy. The second count of the state’s substitute information filed on March 19, 1991, charged the defendant with conspiracy to violate three separate sections of the state dependency producing drug law, General Statutes §§ 21a-277 (a) and 21a-279 (a) and (c). The defendant argues that the trial court failed to include in its instructions to the jury a requirement that it unanimously find that he had conspired to commit one or some or all of these underlying offenses. Specifically, the defendant argues that because the underlying offenses carry different maximum sentences, ranging from one to fifteen years for first time offenses, the jury should have been instructed that it was required to determine, as an essential element of the crime of conspiracy, the particular underlying offense or offenses that the defendant had conspired to commit. Without this determination, the defendant argues, the court could not know which crime or crimes the jury found the defendant guilty of conspiring to commit and thus could not properly sentence him.

The defendant concedes that he did not except to the trial court’s instructions at the time they were given. He claims, however, that he is entitled to review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), because the faulty instructions violated his rights to due process and to a jury trial under both the United States and Connecticut constitutions. In the alternative, the defendant claims that the erroneous jury instructions constituted “plain error.” Practice Book §§ 4185, 2000; State v. Hopes, 26 Conn. App. 367, 373, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992).

In State v. Golding, supra, 239-40, our Supreme Court held that a defendant can prevail on an unpreserved claim of constitutional error “only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.)

We agree with the defendant that, though unpreserved, this claim satisfies the conditions warranting appellate review “because the jury reached its decision without any instruction on, or consideration of, an essential element of the crime charged. Screws v. United States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945).” (Emphasis in original.) Id., 238. Jury instructions must provide jurors with a “clear understanding of the elements of the crime charged, and [afford] them proper guidance for their determination of whether those elements were present.” (Internal quotation marks omitted.) State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992). If an instruction fails to satisfy these requirements, it violates “the defendant’s right to due process of the law as guaranteed by the fourteenth amendment to the United States constitution and article first, § 8 of the Connecticut constitution.” Id., 603. An accused maybe convicted only “upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” State v. Roque, 190 Conn. 143, 157, 460 A.2d 26 (1983). We conclude that, under the facts of this case, the jury was required to determine, beyond a reasonable doubt, which underlying crime or crimes the defendant had conspired to commit. The trial court’s failure to instruct the jury in this regard deprived the defendant of a fair trial.

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

“Where the evidence establishes only one agreement, there can be only one conspiracy conviction, even though the conspirators planned, as part of the agreement, to engage in conduct violative of more than one criminal statute. State v. Stellato, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987).” State v. Reyes, 19 Conn. App. 179, 185, 562 A.2d 27 (1989), cert. denied, 213 Conn. 812, 568 A.2d 796 (1990). “ ‘Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one. . . .The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute .... For such a violation, only the single penalty prescribed by the statute can be imposed.’ Braverman v. United States, 317 U.S. 49, 53-54, 63 S. Ct. 99, 87 L. Ed. 23 (1942). . . .” State v. Howard, 221 Conn. 447, 462, 604 A.2d 1294 (1992); State v. Stellato, supra, 456.

The penalty for conspiracy is defined in General Statutes § 53a-51, which provides that the crime of conspiracy is a crime “of the same grade and degree as the most serious offense which is . . . [the] object of the conspiracy.” In State v. Trent, 182 Conn. 595, 601, 438 A.2d 796 (1981), a case involving the crime of attempt, for which the penalty is also defined in § 53a-51, our Supreme Court noted that this section, patterned on the Model Penal Code, “demonstrates that careful selectivity of language by the legislature that points unerringly to the conclusion that the sentence for [attempt or conspiracy] to commit a crime was to be prescribed in accordance with the sentencing parameters delineated for the substantive crime[s] which [were] the object[s] of the attempt [or conspiracy].” Prior to the adoption of this language in 1971, the penalty for conspiracy carried “a maximum sentence of fifteen years even though the underlying offense may have had a much less severe maximum sentence.” Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes § 53a-51 (1971), p. 19. The language of the statute now allows for a closer concurrence between the grade of crime that was the object of the conspiracy and the sanction for conspiracy itself.

When the state charges in a single count a conspiracy that contemplates the commission of more than one crime, and the jury finds the defendant guilty on that single count of conspiracy, the question becomes which of the several crimes determines the maximum sentence. Section 53a-51 indicates that the penalty is based on “the most serious” object offense. The jury must, therefore, specifically determine the crime or crimes that were the object offenses of the conspiracy, so that the trial court may properly base the defendant’s sentence on the most serious of these object offenses.

The defendant properly analogizes this case to our Supreme Court’s decision in State v. Golding, supra. There, the court held that because a person convicted of general assistance fraud is subject to the penalties for larceny under General Statutes §§ 53a-122 through 53a-125b, and those statutes grade the degree of the crime and consequent severity of the penalties according to the dollar value of the assistance wrongfully obtained as a result of the defendant’s conduct, the trial court must instruct the jury that it must find, beyond a reasonable doubt, the amount the defendant obtained by fraud. “Because the amount the defendant obtained by fraud [was] an essential element of the crime under the applicable statutory scheme, the trial court [was] obligated to instruct the jury concerning it.” State v. Golding, supra, 238.

In this case, the second count of the state’s substitute information alleged the existence of only one agreement. That agreement contemplated the commission of three separate crimes. While the defendant was properly convicted of only one crime of conspiracy, the statutory scheme indicates that the degree of that offense and the severity of the permissible punishment are determined by the most severe of the offenses that are the objects of the conspiracy. These three offenses authorize separate sentences of imprisonment up to a maximum one year, five years, and fifteen years, respectively. Without a specific instruction to the jury, however, the trial court could not know which of the object offenses the defendant was found guilty of conspiring to commit and, hence, what punishment should be imposed.

We have carefully reviewed the trial court’s instruction on the conspiracy count and find no indication that the jury was asked specifically to determine which object offense or offenses the defendant had conspired to commit. In its instruction, the trial court properly characterized the three underlying crimes as alternative means of committing the substantive crime of conspiracy. “The second count merely alleges a violation of those statutes [§ 21a-277 (a) and § 21a-279 (a) and (c)] as evidence that [the defendant] engaged in a conspiracy. The offense is conspiracy. And that he participated in the commission of overt acts which are outlined in paragraphs (a) through (e) of the information.” The trial court explained in great detail each element of § 21a-277 (a), possession of narcotics with intent to sell. Following that, the court again explained at length the elements of conspiracy, stating: “Therefore, in order to sustain a conviction of this accused on the [conspiracy] charges contained in this information, the first element which the state must prove beyond a reasonable doubt is that he entered into an agreement with at least one other person to engage in conduct constituting a crime. What crime? The possession of cocaine and heroin, as I have read that to you previously. And where? At the date and time specified in the information, that residence on Rhode Island Avenue, Fairfield, June 29, 1989, knowing the illegal character of the material possessed, actually or constructively. Did he make an agreement to do that? Secondly, they rely on subsection (c) where the reliance is on possession of marijuana in vehicles. . . . And primarily that he did possess, constructively or actually, cocaine and heroin with the intent to sell as a basis of the conspiratorial agreement between him and others.” Shortly thereafter, the court stated: “The defendant may not be found guilty unless the state has proven beyond a reasonable doubt that he had the specific intent to violate the law, to possess cocaine and heroin with the intent to sell, and that he entered into the agreement to engage in conduct constituting that crime, or to possess heroin or cocaine simply or to possess marijuana, as the subject matter of [§ 21a-]279 (c).” Still later, when instructing the jury on the beyond a reasonable doubt standard, the trial court referred to “the offense of conspiracy, agreeing with others to violate §§ 21a-277 (a) and [21a-]279 (a) and (c), as I have defined them for you.”

It is evident from the instructions that the trial court never made clear to the jury that it was required to find that the defendant had conspired to commit one or two or all three of the crimes specified in the information. At one point, the jury was instructed on the object offenses in the disjunctive; at several other points, the jury was instructed in the conjunctive. The jury’s return of a general verdict of guilty makes it impossible to know which of the several object crimes set forth in the information it determined the defendant had conspired to commit.

At sentencing, the trial court apparently relied on the fact that much of the evidence, particularly the videotaped discussion shown to the jury, would support a conviction based on a conspiracy to violate § 21a-279 (a), possession of cocaine and heroin with intent to sell. In the absence of a special instruction to the jury, however, the trial court could not properly determine whether the jury had intended to convict the defendant of conspiracy to possess heroin and cocaine with intent to sell, or conspiracy to possess heroin and cocaine, or conspiracy to possess marihuana, or conspiracy to commit all or a combination of these offenses. See United States v. Orozco-Prada, 732 F.2d 1076, 1083-84 (2d Cir. 1984); see also United States v. McNeese, 901 F.2d 585, 605 (7th Cir. 1990); United States v. Barrett, 870 F.2d 953, 956 (3d Cir. 1989) (Stapleton, J., concurring).

We point out that this is not a case where the defendant was convicted of the most serious underlying offense. In that case it might have been reasonable for the trial court to conclude that the jury had also found the defendant guilty of a conspiracy to commit that underlying offense. See United States v. Peters, 617 F.2d 503, 506 (7th Cir. 1980) (per curiam). Here, the jury acquitted the defendant of the underlying offense of possession of cocaine and heroin with intent to sell. Therefore, the trial court could not, without a special instruction, reasonably conclude that the jury had found the defendant guilty of conspiracy to commit that offense.

“In reviewing a constitutionally based challenge to the court’s instructions to the jury, we must examine the charge as a whole to determine whether it is reasonably possible that the jury was misled by the challenged instruction.” (Internal quotation marks omitted.) State v. Booker, 28 Conn. App. 34, 46-47, 611 A.2d 878, cert. denied, 223 Conn. 919, 614 A.2d 826 (1992). “[A]n error in the charge requires reversal only if, in the context of the whole instruction, there is a reasonable possibility that the jury was misled in reaching its verdict.” State v. Foster, 202 Conn. 520, 538, 522 A.2d 277 (1987). We conclude that in the absence of an instruction to the jury that it must determine beyond a reasonable doubt which of several object offenses the defendant conspired to commit, the jury was misled by the charge.

Because our resolution of this issue relating to the impropriety of the trial court’s charge to the jury on the elements of conspiracy requires a new trial, we need not reach the defendant’s third claim, that the trial court improperly instructed the jury on the overt act element of the crime.

Our resolution of this issue requires a reversal of the defendant’s conspiracy conviction. Any retrial on that charge is subject to the limitations established by the Supreme Court in State v. Aparo, 223 Conn. 384, 614 A.2d 401 (1992).

The judgment is reversed in part and the case is remanded for a new trial on the second count of the information.

In this opinion the other judges concurred.

       General Statutes § 53a-48 provides in pertinent part: “conspiracy. . . . (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”
      General Statutes § 21a-277 provides in pertinent part: “penalty for ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, PRESCRIPTION, DISPENSING, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned. . . .” General Statutes § 21a-279 provides in pertinent part: “penalty for illegal possession. . . . (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years or be fined not more than two hundred fifty thousand dollars, of be both fined and imprisoned. . . .
      “(c) Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, for a first offense, may be fined not more than one thousand dollars or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense, may be fined not more than three thousand dollars or be imprisoned not more than five years, or be both fined and imprisoned. . . .”

       More facts pertaining to the warrant affidavits and applications will be discussed later in this opinion, in our review of the trial court’s denial of the motion to suppress.

       The fourth amendment to the United States constitution, made applicable to the states through the due process clause of the fourteenth amendment in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The fourteenth amendment to the United States constitution provides in part: “No state shall . . . deprive any person of life, liberty, or property, without due process of law. . . .”
      Article first, § 8, of the Connecticut constitution provides in part: “In all criminal prosecutions, the accused shall have a right to be . . . informed of the nature and cause of the accusation. ... No person shall be . . . deprived of life, liberty or property without due process of law. . . .”

       The substitute information states in pertinent part: “SAID STATE’S ATTORNEY FURTHER ACCUSES the said ISTVAN TOTH aka STEVEN TOTH with the crime of CONSPIRACY and charges that between January 1, 1989 to July 1, 1989 at Fairfield, Bridgeport, Stratford and at other locations unknown, the said ISTVAN TOTH aka STEVEN TOTH with intent that conduct constituting the crime of Violation of the State Dependency Producing Drug Law, in violation of Section[s] 21a-277 (a), 21a-279 (a) [and] (c), be performed, agreed with Joel Campofiore, Joseph Mandel, Robert Petrino, Leon Goulet, and others unknown, and there was committed one or more of the following overt acts in the performance of such conspiracy . . . .”

       In his brief, the defendant suggests that the state should have charged and the trial court instructed on multiple counts of conspiracy. He cites our decision in State v. Stellate, 10 Conn. App. 447, 456-57, 523 A.2d 1345 (1987), in which we stated that “if the evidence justifies charging the jury that the defendant may be guilty of conspiracy to commit more than one crime, the court should instruct on all of the separate counts which charge conspiracy. If the jury returns guilty verdicts on more than one count the court should render judgment and sentence on only one. . . . Pursuant to General Statutes § 53a-51, the court should render judgment and sentence on conspiracy to commit the greater offense. If the crimes of conspiracy of which the jury finds the defendant guilty are of equal severity, the court must use its discretion to render judgment and sentence on only one of them.” (Citations omitted.) We need not address the defendant’s suggestion because in this case, the state elected to bring the conspiracy charge in a single count.

       See footnote 1.


author: Lavery, J.

text:
    Gaynor Electric Company, Inc. v. James Hollander
    (10903)
    Dupont, C. J., Foti and Lavery, Js.
    Argued September 28, 1992
    decision released January 5, 1993

      Anthony M. Fitzgerald, with whom was William F. Holland, for the appellant (defendant).

      Frank J. Szilagyi, for the appellee (plaintiff).
   Lavery, J.

The defendant appeals from the trial court’s judgment in favor of the plaintiff on the defendant’s counterclaim for incidental damages. The defendant asks that we reverse the judgment of the trial court because (1) the trial court incorrectly determined that certain contractual terms added by the plaintiff to the backs of its invoices were incorporated into the contract between the parties by virtue of the Uniform Commercial Code (UCC), and (2) the trial court incorrectly ruled that the added terms barred the defendant from recovering incidental damages. Because the added terms of the contract did not, as a matter of law, bar the defendant from seeking incidental damages, we need not reach the merits of the defendant’s first claim. We reverse the judgment of the trial court and remand the case for a new trial on the issue of incidental damages.

The trial court found the following facts. The plaintiff, a Connecticut corporation that manufactures electromagnetic switches, and the defendant, who makes heated handlebar grips for snowmobiles, began a business relationship in 1986, when the plaintiff agreed to supply the defendant with a large quantity of switches in 1987. Thereafter, agreements were reached for supplying switches to the defendant for 1988 and 1989 as well.

In July, 1989, the defendant discovered a defect that caused a large number of the switches to jam and therefore to become unusable in its product. After being notified of the problem and inspecting the switches, the plaintiff requested that the defendant return all of the switches in its inventory. Between August and November of 1989, the defendant packed up and shipped 29,000 switches back to the plaintiff. Meanwhile, the plaintiff supplied the defendant with 6000 higher quality switches, and endeavored to repair and replace the returned switches in order to fill the remainder of the defendant’s order.

A dispute arose between the parties when the defendant did not pay for additional and previously replaced switches, and the plaintiff brought an action to recover the debt. Just prior to trial, the parties stipulated that judgment would enter in favor of the plaintiff on the indebtedness claim of $17,900.58. The issues remaining before the trial court were those raised by the defendant in a four count counterclaim relating to its claims for incidental damages.

We note that the defendant reiterated at oral argument, in response to questions from the court, that he was seeking only incidental damages on appeal, and, although consequential damages were alleged at trial, there was no attempt to prove them. In its memorandum of decision, the trial court wrote: “It is Hollander’s claim that, as a result of the faulty product supplied, he incurred substantial expense in unpacking, repacking, and shipping the 29,000 switches recalled by the plaintiff. Furthermore, he alleges losses of goodwill and market share as a result of the defective switches that reached Hollander’s customers, as well as other related expenditures.” At oral argument, when discussing this passage, counsel for the defendant noted that the “$15,000 figure,” or claim for damages, comes from the expenses of unpacking, repacking, and shipping the 29,000 defective switches, and further said, “We acknowledged in our trial brief below that we had been unable to put any price tag on [the loss of goodwill, market share, and related expenditures].” The record shows, therefore, that the defendant made no attempt to prove, and made no monetary claim for, consequential damages.

The trial court determined that the contract terms on the back of the plaintiffs invoices, barring recovery for consequential damages, did constitute part of the contract between the parties. The defendant argues on appeal that these terms are not part of the contract, and therefore do not limit his remedies. We need not determine whether the trial court correctly ruled that the invoice terms were part of the contract because, even if we assume that the trial court ruled correctly, those terms do not bar the incidental damages that the defendant seeks.

The contractual terms written on the reverse side of the plaintiffs invoices, by their plain language, do not bar the recovery of incidental damages, and in fact allow for their recovery. The section of the invoice entitled “Limitation of Liability,” reads: “The liability of the Seller to the Buyer arising out of the manufacture, sale, delivery, use or resale of the goods, whether based on warranty, contract, negligence or otherwise, shall not exceed the cost of correcting defects in the goods as herein provided. Upon the expiration of the warranty period, all such liability shall terminate. The Seller shall not be liable to the Buyer or ultimate users of the equipment into which the goods are incorporated for loss of anticipated profits, loss by reason of plant shutdown or service interruption, nonoperation or increased expense of operation of other equipment, loss of use of revenue, cost of capital or other consequential loss or damage of any nature arising from any cause whatsoever by reason of the manufacture, sale, delivery, use or resale of the goods covered hereunder.” The terms do not mention incidental damages.

The UCC makes a clear distinction between incidental and consequential damages. General Statutes § 42a-2-715, which corresponds to UCC § 2-715, provides that incidental damages include expenses incidental to the seller’s breach, while consequential damages includes damages resulting from the seller’s breach. “Because consequential damages are defined in a separate subsection, there is no question that these expenses are distinct from consequential damages.” S & R Metals, Inc. v. C. Itoh & Co., 859 F.2d 814, 818 (9th Cir. 1988). As the official comment to § 2-715 of the UCC notes, incidental damages are intended to “provide reimbursement for the buyer who incurs reasonable expenses in connection with the handling of rightfully rejected goods or goods whose acceptance may be justifiably revoked . . . .” These damages are clearly distinguishable from consequential damages, and therefore “may be recovered even when consequential damages are excluded.” Carbontek Trading Co. v. Phibro Energy, Inc., 910 F.2d 302, 308 (5th Cir. 1990).

The plaintiff argues that incidental damages are covered by the language of paragraph six of the invoice terms which states that the seller shall not be liable for “consequential loss or damage of any nature arising from any cause whatsoever by reason of the manufacture, sale, delivery, use or resale of the goods covered hereunder.” In its brief, the plaintiff emphasizes the words “or damage of any nature” to claim that the document excludes incidental damages. Both grammatically and contextually, the plaintiff’s argument fails upon close examination of the contractual language.

Paragraph six begins by listing several forms of consequential damage: loss of anticipated profits, loss by reason of plant shutdown or service interruption, nonoperation or increased expense of operation of other equipment, loss of use of revenue, and cost of capital. This list is followed by the words “or other consequential loss or damage of any nature . . . .’’Therefore, reading the sentence as a whole, it is clear that it refers to consequential damages, the damages listed and consequential loss or damage of any kind. The drafter would have excluded incidental damages specifically if that was the purpose of the paragraph in question. The author also would not have bothered to exclude consequential damages specifically if both consequential and incidental damages could be limited by the mere phrase “damage of any nature.”

The plaintiff asks us to read the contract in such a way as to ignore common rules of grammar. The adjective “consequential,” as used in the phrase “other consequential loss or damage of any nature arising from any cause whatsoever,” modifies the nouns “loss” and “damage.” The phrase at issue means that the seller is not liable for any consequential loss or consequential damage.

The contractual terms not only fail to exclude a claim for incidental damages but, as the defendant claims, read in such a way as to allow for their recovery. Specifically, paragraph six states in part: “The liability of the Seller to the Buyer arising out of the manufacture, sale, delivery, use or resale of the goods, whether based on warranty, contract, negligence or otherwise, shall not exceed the cost of correcting defects in the goods as herein provided.” The plaintiffs argue that this part of the contract bars a recovery of incidental damages as well because it restricts the seller’s liability to “the cost of correcting the defects in the goods.” This restriction, the plaintiff asserts, means that it is liable only for the costs of the repair of the 29,000 switches. The expenses borne by the defendant for inspection, packaging, and transporting the goods were, the plaintiffs claim, incident to the recall of the goods and not related to correcting the defects. The facts and circumstances of this case, and the plain meaning of the phrase in question, dictate otherwise.

When the plaintiff became aware of the defect in the switches, it requested that the defendant ship the 29,000 switches back to Gaynor. Since the plaintiff could not repair the switches until they were shipped to its plant, it was incumbent on the defendants to send them. Therefore, the shipping and attendant repacking were clearly part of the “costs of correcting the defect.”

As the plaintiff correctly points out, the UCC, in § 2-719 (1) (General Statutes § 42a-2-719 [1]) permits parties to limit a buyer’s remedy for breach. Under § 2-719 (1) (b), however, if such a limited remedy is designed to be exclusive, such as the plaintiff’s claim in this case, it must be clearly expressed. See 1 J. White & R. Summers, Uniform Commercial Code (3d Ed.) § 12-9. Here, the contract states that the seller’s liability “shall not exceed the cost of correcting defects in the goods.” The plaintiff claims that these words create an exclusive remedy limited to the physical repair of the goods. Absent more specific language, we cannot find that these words create the limitation claimed, and, to the contrary, find that in their plain meaning these words include the type of damages sought by the defendant.

“ ‘In interpreting contract items, we have repeatedly stated that the intent of the parties is to be ascertained by a fair and reasonable construction of the written words and that the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.’ ” Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690 (1990). Normally, a determination of what the parties intended by contractual commitments is “a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion it had reached”; Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 130, 523 A.2d 1266 (1987), affirming 5 Conn. App. 366, 497 A.2d 1049 (1985); but “[wjhere there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” Id., 131. “Terms cannot be added to a contract by interpretation.” Con necticut Union of Telephone Workers v. Southern New England Telephone Co., 148 Conn. 192, 200, 169 A.2d 646 (1961). Applying these principles to the added invoice terms in this case, we conclude that as a matter of law those terms do not bar a claim for incidental damages, and in fact expressly permit such a claim.

The judgment is reversed in part and the case is remanded with direction to render judgment on the counterclaim for the defendant to recover such incidental damages as he may prove on a new trial limited to the issue of incidental damages.

In this opinion the other judges concurred.

       The following colloquy occurred during oral argument:
      “The Court: You are saying that all the counts in the counterclaim allege damages which would be incidental damages as opposed to consequential?
      “Mr. Fitzgerald (counsel to the defendant): Everything . . . which we are claiming on appeal falls into that category.
      “The Court: Not everything that was in the complaint originally?
      “Mr. Fitzgerald: We had a claim under CUTPA, we claimed punitive damages, we claimed . . .
      “The Court: Well, putting aside punitive damages, maybe you could just look at the complaint with me and tell me which is which and which falls into what category . . . let’s get to paragraph fourteen, the record page eighteen.”
      Mr. Fitzgerald called out the letters of the categories from the counterclaim that he deemed were claims for incidental damages, and noted that categories F (loss of sales) and G (loss of good will) were claims for consequential damages. The colloquy continued:
      “The Court: F and G have nothing to do with incidental damages?
      “Mr. Fitzgerald: No. Nor was . . . there any proof or claim at trial as opposed to in the counterclaim.”

       General Statutes § 42a-2-715 provides: “(1) Incidental damages resulting from the seller’s breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach.
      “(2) Consequential damages resulting from seller’s breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and (b) injury to person or property proximately resulting from any breach of warranty.”

       General Statutes § 42a-2-719 (1) provides: “Subject to the provisions of subsections (2) and (3) of this section and of the preceding section on liquidation and limitation of damages, (a) the agreement may provide for remedies in addition to or in substitution for those provided in this article and may limit or alter the measure of damages recoverable under this article, as by limiting the buyer’s remedies to return of the goods and repayment of the price or to repair and replacement of nonconforming goods or parts; and (b) resort to a remedy as provided is optional unless the remedy is expressly agreed to be exclusive, in which case it is the sole remedy.”

       UCC comment 2 to General Statutes § 42a-2-719 states: “Subsection (1) (b) creates a presumption that clauses prescribing remedies are cumulative rather than exclusive. If the parties intend the term to describe the sole remedy under the contract, this must be clearly expressed.”


author: Per Curiam.

text:
    Leon W. Hayes v. Thomas Boyd
    (10690)
    O’Connell, Landau and Heiman, Js.
    Submitted on briefs September 14
    decision released October 6, 1992

      Barry J. Ward filed a brief for the appellant (defendant).

      David J. O’Dea filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Connecticut Bank and Trust Company, N.A. v. Napert-Boyer Partnership et al.
    (11132)
    Daly, Heiman and Freedman, Js.
    Argued September 15
    decision released October 6, 1992

      Raymond L. Baribeault, Jr., with whom, on the brief, was Andrew Brand, for the appellants (named defendant et al.).

      Jeanine M. Dumont, with whom was Robert M. Barrack, for the appellee (plaintiff Federal Deposit Insurance Corporation).
   Per Curiam.

Our review of the record, briefs and arguments convinces us that the judgment should be affirmed.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    Calvin Carter v. Edward Newman
    (10904)
    Daly, O’Connell and Heiman, Js.
    Submitted on briefs September 14
    decision released October 6, 1992

      Leonard M. Crone filed a brief for the appellant (defendant).

      Linda R. Stark and John R. Bryk filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Agnes J. Marek et al. v. Katherine L. Marek
    (10621)
    Daly, Foti and Lavery, Js.
    Submitted on briefs September 16
    decision released October 6, 1992

      Douglas W. McCollum filed a brief for the appellant (defendant).

      Tina L. Osborne filed a brief for the appellees (plaintiffs).
   Per Curiam.

The judgment is affirmed.


text:
    Pat Dinardo v. First Constitution Bank
    (10850)
    O’Connell, Landau and Heiman, Js.
    Argued September 23
    decision released October 13, 1992

      Daniel Shepro, with whom, on the brief, was Ann Marie Kent, for the appellant (plaintiff).

      Susan S. Chambers, with whom, on the brief, was Anthony M. Fitzgerald, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Gonzalo Avila v. Commissioner of Correction
    (10484)
    O’Connell, Heiman and Cretella, Js.
    Argued September 22
    decision released October 13, 1992

      Laurence P. Nadel, for the appellant (petitioner).

      Stephen J. Sedensky III, assistant state’s attorney, with whom, on the brief, was Donald Browne, state’s attorney, for the appellee (respondent).
   Per Curiam.

The judgment is affirmed.


text:
    Morris Silverstein’s Appeal from Probate
    (10941)
    Dupont, Lavery and Freedman, Js.
    Argued September 23
    decision released October 13, 1992

      Morris Silverstein, pro se, the appellant (plaintiff).

      David C. Rappe, for the appellee (defendant Dorothy Mitchell).
   Per Curiam.

The judgment is affirmed.


text:
    First Constitution Bank v. Great Oak Farm Associates et al.
    (11318)
    O’Connell, Landau and Heiman, Js.
    Argued September 23
    decision released October 13, 1992

      Daniel Shepro, with whom, on the brief, was Ann Marie Kent, for the appellant (defendant Pat DiNardo).

      Susan S. Chambers, with whom, on the brief, was Anthony M. Fitzgerald, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    Lynn Wilson-Rich v. Bryan Wilson-Rich
    (10409)
    O’Connell, Heiman and Cretella, Js.
    Argued September 22
    decision released October 13, 1992

      William C. Bieluch, Jr., for the appellant (defendant).

      Joyce A. Riccio, for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed.


text:
    Paula Krauss et al. v. Carl C. Chi et al.
    (10777)
    Landau, Heiman and Freedman, Js.
    Argued September 24
    decision released October 20, 1992

      David Pinciaro, for the appellants (named plaintiff et al.).

      Henry A. Salton, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    Shawmut Mortgage Company v. Larry Corrone
    (10742)
    Foti, Landau and Heiman, Js.
    Argued September 30
    decision released October 20, 1992

      Max F. Brunswick, for the appellant (defendant).

      Daniel P. Kulakofsky, for the appellee (plaintiff).
   Per Curiam.

We have fully reviewed the claims on appeal, examined the record and briefs and heard argument. We conclude that the appeal is without merit.

The judgment is affirmed and the case is remanded to the trial court to set new law days.


text:
    Phillip Davis et al. v. Rosalind Lehrer et al.
    (10996)
    Daly, Foti and Heiman, Js.
    Argued September 29
    decision released October 20, 1992

      John Lino Ponzini, for the appellants (plaintiffs).

      Bruce A. Chamberlain, for the appellees (defendants).
   Per Curiam.

The judgment is affirmed.


text:
    The Finance Discount Company v. Rose T. Neary et al.
    (11005)
    Dupont, C. J., O’Connell and Freedman, Js.
    Submitted on briefs September 15
    decision released October 20, 1992

      Richard B. Laschever filed a brief for the appellants (defendants).

      Neil E. Atlas filed a brief for the appellee (plaintiff).
   Per Curiam.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.


text:
    Alice S. Hager et al. v. John Hager et al.
    (10971) (10972)
    Dupont, C. J., Daly and O’Connell, Js.
    Argued September 25
    decision released October 20, 1992

      John Lackland, for the appellants-appellees (defendants).

      Edward N. Lerner, with whom, on the brief, was Nancy M. Kostal, for the appellee-appellant (plaintiff Alan Hager).
   Per Curiam.

The judgment is affirmed.


text:
    Anthony Glaviano et al. v. Lloyd Ralston
    (10744)
    Foti, Landau and Heiman, Js.
    Argued September 25
    decision released October 20, 1992

      Salvatore A. Maresca, Jr., for the appellants (plaintiffs).

      Steven M. Regula, for the appellee (defendant).
   Per Curiam.

The judgment is affirmed.


text:
    Bristol Federal Savings Bank v. Dorothy E. Gagnon et al.
    (11090)
    Lavery, Landau and Cretella, Js.
    Argued October 2
    decision released November 3, 1992

      Dorothy E. Gagnon, pro se, the appellant (named defendant).

      Mark Ziogas, for the appellee (plaintiff).
   Per Curiam.

We have fully reviewed the claims on appeal, examined the record and briefs and heard argument. We conclude that the appeal is without merit.

The judgment is affirmed.


text:
    State of Connecticut v. Dean Milligan
    (11106)
    Daly, Foti and Landau, Js.
    Argued October 27
    decision released November 17, 1992

      John C. Levanti, for the appellant (defendant).

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Geoffrey Marion, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The judgment is affirmed.