text:
    State of Connecticut v. Steven Turdo
    (4975)
    Borden, Daly and Bieluch, Js.
    Argued June 10
    decision released September 15, 1987

      David A. Dee and Carmine Guiliano, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was JohnNazzaro, former deputy assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from his sentence following a judgment of conviction rendered in accordance with the jury’s verdict of guilty of one count of operating a motor vehicle while his license was suspended, a violation of General Statutes § 14-215. He claims that the court violated his constitutional right to due process in that his sentence was enhanced, based upon evidence suppressed prior to trial. We find no error.

The jury could reasonably have found the following relevant facts. On November 15,1985, at 12:50 a.m., the defendant was arrested by two officers of the Stoning-ton police department. The police officers observed the defendant’s car weaving in its lane and across the center line. The officers stopped the car and the defendant emerged from the driver’s side, staggering slightly and swaying from side to side. The defendant’s speech was slurred and there was a moderate odor of liquor on his breath. He admitted to the officers that he had consumed two or three beers. The officers requested that the defendant perform certain standard field tests to establish whether the defendant’s motor skills were impaired. He performed poorly on these tests. A breathalizer test conducted by the police indicated a .16 percent blood alcohol content by weight. The result of the breathalizer test, however, was suppressed prior to trial. At the police station, a routine computer check with the department of motor vehicles revealed that the defendant’s license had been suspended on November 17, 1984, for a period of twenty-four months, as a result of his second conviction for operating a motor vehicle while under the influence of liquor, and had not been restored as of the date of the arrest.

The defendant was subsequently charged with operation of a motor vehicle while his license was suspended, a violation of General Statutes § 14-215; see footnote 1, supra; and operation of a motor vehicle while under the influence of liquor or drugs, a violation of General Statutes § 14-227a. He pleaded not guilty and was tried to a jury which rendered a verdict of guilty to operating a motor vehicle while his license was suspended, and not guilty to operating a motor vehicle while under the influence of liquor or drugs. The defendant was sentenced to serve a term of imprisonment of one year, execution to be suspended after ninety days, and probation for two years thereafter with the following conditions: (1) no operation of a motor vehicle in the states of Connecticut or Rhode Island during the term of probation; (2) no drinking of alcohol during the term of probation; and (3) participation in alcohol abuse treatment as recommended by the probation department. In addition, he was fined $500.

The defendant’s only claim on appeal is that the trial court violated his right to due process under the fifth and fourteenth amendments to the constitution of the United States by enhancing of his sentence on the basis of evidence suppressed prior to trial. The state has conceded that the defendant’s claim warrants review under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

In support of this claim, the defendant refers to the following statement by the trial court: “[I]f [the defendant’s] testimony [of two or three beers] is true, it would be in contravention of any scientific testimony I have heard on the ability of [that amount of] alcohol to produce a [breathalizer] reading of .16.” This statement was made during the trial, immediately following the defendant’s testimony, and outside the presence of the jury. No further reference was made concerning the breathalizer test during the remainder of the trial or during sentencing. Furthermore, we note that the defendant’s counsel and the state were in agreement that the defendant’s probation should be conditioned upon his not operating a motor vehicle in Connecticut or Rhode Island, that he receive alcohol counseling as deemed appropriate by the department of probation, and that he be given the maximum period of probation.

“ ‘[I]f a sentence is within statutory limits it is not generally subject to modification by a reviewing court. ... “A sentencing judge has very broad discretion in imposing any sentence within the statutory limits . . . .” ’ ” (Citations omitted.) State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986). “The court may ‘appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider or the source from which it may come.’ . . . Due process requires, however, that information be considered only if it has some minimal indicium of reliability.” (Citations omitted.) Id. While the court should refrain from comments that have no basis in the record, “the mere reference to information outside of the record does not require a sentence to be set aside unless the defendant shows: (1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence.” Id., 321. The defendant’s claim fails under both prongs of this test.

As to the first prong, the breathalizer test was suppressed because the police did not comply with the requirements of General Statutes § 14-227b (b). Such failure, however, does not render the test results materially false or unreliable. See United States v. Schipani, 315 F. Sup. 253 (E.D.N.Y.), aff’d, 435 F.2d 26 (2d Cir. 1970) (evidence obtained in violation of fourth amendment properly used in sentencing). As to the second prong of the rule in Collette, there is no evidence in the record to indicate that the court substantially relied upon the results of the breathalizer test in determining the sentence. In fact, there is no indication in the record that the court considered the breathalizer test at all in determining the defendant’s sentence. The court’s comment at trial stands by itself, completely unreferenced to anything further at trial or in sentencing.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 14-215. operation while registration or LICENSE IS REFUSED, SUSPENDED OR REVOKED, (a) No person to whom an operator’s license has been refused, or whose operator’s license or right to operate a motor vehicle in this state has been suspended or revoked, shall operate any motor vehicle during the period of such refusal, suspension or revocation. . . .
      “(c) Any person who operates any motor vehicle during the period his operator’s license or right to operate a motor vehicle in this state is under suspension or revocation on account of a violation of subsection (a) of section 14-227a, subsection (d) or (f) of section 14-227b, or section 53a-56b or 53a-60d, shall be fined not less than five hundred dollars nor more than one thousand dollars and imprisoned not more than one year, thirty days of which may not be suspended or reduced in any manner.”

       “[General Statutes] Sec. 14-227a. operation while under the influence OF LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight. ...”

       See General Statutes § 14-215 (c); footnote 1, supra.

       The defendant has not challenged, nor do we rule upon, the propriety of the conditions imposed upon probation by the court as agreed to by the defendant’s counsel and the state. See General Statutes §§ 53a-30 and 14-215 (c).


source: Caselaw Access Project

author: Borden, J.

license: Public Domain

text:
    Jack Russo v. Raymond Lopes, Commissioner of Corrections
    (4853)
    Borden, Daly and Bieluch, Js.
    Argued June 9
    decision released September 15, 1987

      Elizabeth M. Inkster, assistant public defender, for the appellant (petitioner).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, state’s attorney, for the appellee (respondent).
   Borden, J.

The petitioner appeals from the denial and dismissal of his petition for a writ of habeas corpus. The narrow issue in this appeal is whether the court erred in its conclusion that the petitioner failed to carry his burden of proof on the question of deliberate bypass. We find error.

The petitioner pleaded guilty to an information charging him with the crime of being an accessory to arson in the first degree. General Statutes §§ 53a-8, 53a-lll (a) (2). He filed a petition for a writ of habeas corpus challenging his confinement based on a claim that his guilty plea was not knowingly, intelligently and voluntarily made. After a hearing was held limited to the issue of deliberate bypass, the trial court dismissed the writ on the ground that the petitioner failed to prove that he did not deliberately bypass the orderly process of direct appellate review. The trial court granted the petitioner’s request for certification to appeal to this court. General Statutes § 52-470 (b).

A petitioner for a writ of habeas corpus must allege and establish by a preponderance of the evidence, that he did not deliberately bypass the orderly procedure of a direct appeal. Galland v. Bronson, 204 Conn. 330, 333, 527 A.2d 1192 (1987); Barlow v. Lopes, 201 Conn. 103, 107-108, 513 A.2d 132 (1986); Paulsen v. Manson, 193 Conn. 333, 337, 476 A.2d 1057 (1984). It has been noted that “the apparent harshness of the deliberate bypass rule has been softened somewhat by ‘requiring that the record before us . . . disclose some reasonable basis for concluding that a convicted person has intelligently, understanding^ and voluntarily waived his statutory right to appeal.’ D’Amico v. Manson, [193 Conn. 144, 146-47, 476 A.2d 543 (1984)]; see Barlow v. Lopes, [supra, 108]. Thus, it has been held that a finding of deliberate bypass cannot be made ‘unless there is an intentional relinquishment or abandonment of a known right or a privilege.’ Stubbs v. Smith, 533 F.2d 64, 69 (2d Cir. 1976); see also Fay v. Noia, [372 U.S. 391, 439, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963)]; Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). The question of whether a petitioner has deliberately bypassed the orderly process of appeal depends upon the varying facts in each case.” Galland v. Bronson, supra, 334. The right of appeal should not be considered to have been waived or abandoned except where waiver or abandonment is clearly established. Barlow v. Lopes, supra, 109.

In order for us to sustain the finding of the habeas court, therefore, the record must affirmatively disclose that the petitioner knowingly, intelligently and voluntarily waived his right to appeal. Id. “When determining whether the waiver of appellate rights [was] valid, the reviewing court should consider the facts and circumstances of the particular case, including the intelligence, background and experience of the petitioner; McClain v. Manson, [183 Conn. 418, 432, 439 A.2d 430 (1981)]; see Johnson v. Zerbst, supra, 464; whether he was fully apprised of his right to appeal, and the consequences of the abandonment of that right; D’Amico v. Manson, supra, 149-50 . . . and whether he was advised concerning the possible merits of an appeal. Staton v. Warden, [175 Conn. 328, 334-35, 398 A.2d 1176 [1978]; see Paulsen v. Manson, [supra, 341].” Barlow v. Lopes, supra, 109-110. We conclude that the evidence is insufficient to support the habeas court’s finding of a deliberate bypass.

Transcripts of the original plea and sentencing proceedings were introduced as exhibits in the habeas hearing. The petitioner testified that he had been told by his trial counsel, on the record at the time of his plea, that there was no right of appeal following a guilty plea in Connecticut. He also testified that this was reiterated by the trial court. A review of the original proceedings bears out the petitioner’s claim with respect to the advice from counsel. While the trial court did not, contrary to the petitioner’s assertions, advise him that he could not appeal from his guilty plea, its silence in light of his counsel’s remarks on the record could nonetheless have been so construed by the petitioner.

The court file of the original proceedings, which was made part of the file of the habeas proceeding, contained several postconviction pro se pieces of correspondence which evince an attempt by the petitioner to perfect an appeal. The habeas court concluded that these papers were evidence of the petitioner’s knowledge of his right to appeal, an initiation of the appeal process, and a subsequent abandonment of it for unknown reasons. Based on this record, the habeas court concluded that the petitioner had failed to meet his burden of proving by a preponderance of the evidence that he did not deliberately bypass the orderly procedure of direct appellate review.

The only evidence of a deliberate bypass is the petitioner’s filing of pro se papers purporting to be an appeal and his subsequent failure to take further steps to perfect an appeal. We conclude that this evidence is insufficient to support a finding of a deliberate bypass.

The record demonstrates that the petitioner possessed both intelligence and experience with the criminal justice system as evidenced by his numerous prior convictions in New York and his appeals therefrom. The petitioner was not, however, familiar with appellate procedure in Connecticut, and in fact labored under the misconception that he could not appeal his guilty plea in this state. Moreover, the record discloses that the petitioner was advised by counsel that he could not appeal from his guilty plea and this inaccurate statement was never corrected by the trial court. The record, therefore, fails to disclose that the petitioner was at any time, fully apprised of his right to appeal. See Barlow v. Lopes, supra, 109. Despite this misleading information, the petitioner did make a pro se effort to file a paper purporting to be an appeal. While this fact supports a conclusion that the petitioner, at some point after sentencing, became aware of his right to appeal, it does not support a conclusion that he was “fully apprised” of such right. Moreover, the petitioner was not apprised of the consequences of abandoning his appeal nor was he advised of the possible merits of the appeal; see id.; prior to allowing it to lapse.

We cannot conclude that the petitioner, who, acting without the benefit of counsel, filed a paper purporting to be an appeal and subsequently allowed that appeal to lapse, can be determined to have deliberately bypassed the orderly process of direct appellate review. Cf. McClain v. Manson, supra, 430. The fact that a party has proceeded in a pro se capacity on his appeal is to be taken into consideration on the issue of deliberate bypass. “Special considerations ordinarily obtain when a petitioner has proceeded pro se. It has been stated that in such a case, ‘courts should review habeas petitions with a lenient eye, allowing borderline cases to proceed. . . .’ Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983).” Galland v. Bronson, supra, 334.

There is error, the judgment is set aside and the case is remanded for farther proceedings in accordance with law.

In this opinion the other judges concurred.

       The plea proceeding reveals the following colloquy:
      “Mr. Meehan [Defense Counsel]: All right. If your Honor please, I think the record should also note that Mr. Jack Russo and I discussed the fact that under Connecticut procedure upon a plea of guilty there is no right of appeal from the ultimate conviction. It was a question, he understands that and I would just like to say that for the record.
      “The Court: Yes.
      “Mr. Meehan:.New York procedure is somewhat different. You can reserve, as I understand, certain claims on appeal despite the plea of guilty but he understands Connecticut does not adopt that type of procedure.
      “The Court: So this is the end of the case at this point.
      “Mr. Meehan: Yes.”
      The sentencing proceeding reveals the following statement by defense counsel: “In addition, prior to the entry of his plea and again having received this letter, I informed Mr. Russo that under Connecticut law when one enters a plea of guilty to a charge he waives all claims that he might have including claims of jurisdiction over his person and that Connecticut, unlike the federal system and possibly unlike what he knows to be the system in New York, does not permit one to enter a guilty plea and to reserve the right to appeal certain issues, in particular, to appeal jurisdictional issues.”

       The correspondence included a letter signed by the petitioner and addressed to the Superior Court of the state of Connecticut, judicial district of Fairfield, file stamped May 7,1982, which stated: “I swear under oath of perjury that the facts set forth are under the penalty of perjury: on said February 16,1982,1 addressed the county court, Chief Justice Arron Ment [sic]; Chief Clerk’s office and the State Attorney’s office with timely notice of appeal.
      “On said date, February 9,1982,1 was sentenced by Justice Melville to a sentence of five to ten years (5 to 10). At this time I amend notice of appeal and having it notorized for legal said matters, for a later date. If the state of Connecticut requires a docket number please forward one to the address indicated below.”
      Attached to this letter was a handwritten copy of a purported timely notice of appeal, dated February 16,1982. It stated: “I petitioner appeal my plea of sentence. I was denied [my] constitutional right by a jury trial on said date 2/9/82 . . . Please see that I have docket No [sic] assign.”

       The advice given to the petitioner by his attorney, while inaccurate as a general statement of his rights, was not unreasonable within the context of matters being raised at the plea and sentencing proceedings. A review of those proceedings reveals that the petitioner had presented an argument that the court lacked jurisdiction over his person because he was not properly extradited from New York. To the extent that a guilty plea would preclude an appeal on this issue, the defense counsel’s advice was accurate.


author: Bieluch J.

text:
    E. I. Constructors, Inc. v. Daniel M. Scinto, Jr., et al.
    (5249)
    Dupont, C. J., Daly and Bieluch, Js.

      Submitted on briefs April 3
    decision released September 15, 1987

      Raphael Korff filed a brief for the appellants (defendants).

      Bernard Green filed a brief for the appellee (plaintiff).
   Bieluch J.

The defendants appeal from the judgment rendered by the trial court in accordance with a report from an attorney state trial referee. Their sole claim of error is that General Statutes § 52-549n specifically excludes reference of a case to an attorney trial referee where the amount in demand is in excess of $15,000. The defendants claim, therefore, that the Superior Court did not have jurisdiction to render the judgment in accordance with the referee’s report. We find no error.

The facts are undisputed. The plaintiff brought an action against the defendants alleging fraud, misappropriation of funds and unjust enrichment. The plaintiff alleged damages in excess of $15,000 exclusive of interest and costs. On January 14,1986, the matter was referred to Leonard M. Coceo, attorney state trial referee, who rendered his findings of fact and conclusions of law on April 25,1986, and recommended judgment for the plaintiff. The trial court accepted the referee’s report and rendered judgment for the plaintiff in accordance with the referee’s findings in the amount of $19,876, representing general damages, plus $5000 in exemplary damages, and interest at 10 percent from September 15, 1983. At no time, until the present appeal, did the defendants challenge the legality of having this action referred to an attorney state trial referee for trial.

The first issue we must decide is whether the defendants, by their failure to challenge the authority of the attorney state trial referee in the trial court, have waived their claim that said referee was without jurisdiction to hear this action. An attack upon the reference of a matter to an attorney state trial referee is regarded as a challenge to “ ‘the power of the tribunal that adjudicated [the] case to hear and determine the cause of action presented to it.’ ” Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 499, 508 A.2d 415 (1986), citing Monroe v. Monroe, 177 Conn. 173, 177, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14 (1979). In Seal Audio, Inc., the defendant, on appeal, for the first time challenged the reference of the action for trial to an attorney state trial referee appointed by the chief justice under General Statutes § 52-434 (a) (4). The court in Seal Audio, Inc. ruled that since the issue was constitutional and implicated the authority of the trial referee whose action was essential for the rendition of the judgment, the failure to raise the claim first to the trial court did not bar its consideration on appeal. Seal Audio, Inc. v. Bozak, Inc., supra. For such reason, we likewise will review the defendants’ claim of a related jurisdictional issue.

The defendants claim that General Statutes § 52-549n precludes reference of this matter to an attorney state trial referee because the amount in demand was in excess of $15,000. This claim is based upon a fundamental misunderstanding of the nature of an attorney state trial referee.

Attorney state trial referees are appointed by the chief justice pursuant to General Statutes § 52-434 (a) (4) for a term not exceeding one year. They have no power to render a judgment. They are procedural cousins to committees appointed by the court under Practice Book § 431, and to factfinders appointed by the judges of the Superior Court under General Statutes § 52-549n and Practice Book §§ 546C and 546E, but with greater authority than such factfinders. While the name, source of appointment and scope of authority of these three adjuncts to the trial bench vary, they share the same function of factfinders “whose determination of the facts is reviewable in accordance with well established procedures prior to the rendition of judgment by the court.” Seal Audio, Inc. v. Bozak, Inc., supra, 502. Practice Book §§ 428 through 445 govern the referral of cases to attorney state trial referees and committees and the prejudgment review of their reports. In like manner, Practice Book §§ 546B through 546K control the referral of cases to the newly created factfinders under § 52-549n and the review before judgment of their findings of fact. We take judicial notice that the attorney state trial referee in this case, Leonard M. Coceo, was appointed by the chief justice, pursuant to § 52-434 (a) (4), for the term of July 1, 1985, through June 30, 1986, which period of time included his trial of this case from January 14, 1986, to June 4, 1986.

The provisions of General Statutes § 52-549n, which was enacted as Public Acts 1982, No. 82-441, and effective July 1, 1983, and which was relied upon by the defendants, apply expressly to the category of fact-finders established thereby for certain contract actions in which only money damages under $15,000 are claimed. This statute has been implemented by the adoption of Practice Book §§ 546B through 546K. Neither this statute nor its correlative rules of practice have any relation or relevancy to the appointment of attorney state trial referees under § 52-434 (a) (4) or that statute’s concomitant procedural rules. While these two judicial auxiliaries function in similar fashion on parallel tracks, the factfinders are limited in their reach to contract actions under $15,000, while attorney state trial referees reach the entire spectrum of nonjury cases. It is clear, therefore, that the statutory limits placed upon a factfinder’s authority to hear a case do not similarly restrict the jurisdictional authority of an attorney state trial referee. Because the judicial officer in the present case who made the factual findings after trial which were adopted by the court was a duly appointed attorney state trial referee pursuant to § 52-434 (a) (4), he had the power to hear the case and to make findings of fact and conclusions therefrom, upon which the judgment was predicated. The defendants’ argument to the contrary is wholly without merit.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 52-434 (a) provides in relevant part: “state referees. (a) Appointment of retired judges and members of the bar. Cases referred. (1) Each judge of the supreme court, each judge of the appellate court, each judge of the superior court and each judge of the court of common pleas who ceases or has ceased to hold office because of retirement other than under the provisions of section 51-49 shall be a state referee for the remainder of his term of office as a judge and shall be eligible for appointment as a state referee during the remainder of his life in the manner prescribed by law for the appointment of a judge of the court of which he is a member. The superior court may refer any civil, nonjury case or with the written consent of the parties or their attorneys, any civil jury case pending before the court in which the issues have been closed to such a state referee who shall have and exercise the powers of the superior court in respect to trial, judgment and appeal in the case. ... (4) In addition to the state referees who are appointed pursuant to subdivision (1) . . . of this section, the chief justice may appoint, from qualified members of the bar of the state, as many state referees as he may from time to time deem advisable or necessary. No appointment of a member of the bar may be for a term of more than one year.”

       “[General Statutes] Sec. 52-549n. certain contract actions REFERRED TO FACT-FINDERS. RULES OF PROCEDURE. In accordance with the provisions of section 51-14, the judges of the superior court may make such rules as they deem necessary to provide a procedure in accordance with which the court, in its discretion, may refer to a fact-finder for proceedings authorized pursuant to this chapter, any contract action pending in the superior court in which only money damages are claimed and which is based upon an express or implied promise to pay a definite sum, and in which the amount, legal interest or property in demand is less than fifteen thousand dollars exclusive of interest and costs. Such cases may be referred to a fact-finder only after the pleadings have been closed, a trial list claim has been filed, no claim for a jury trial has been filed at the time of reference, and the time prescribed in section 52-215 for filing a jury trial claim within thirty days of the return day or within ten days after the issue of fact has been joined has expired.”


author: Bieluch, J.

text:
    Marie A. Petti v. Balance Rock Associates
    (5070)
    Hull, Daly and Bieluch, Js.

      Submitted on briefs May 14
    decision released September 15, 1987

      David E. Schancupp filed a brief for the appellant (defendant).

      Edward R. Giacci filed a brief for the appellee (plaintiff).
   Bieluch, J.

The defendant appeals from the trial court’s judgment rendered for the plaintiff in this action brought under General Statutes § 47-SSd for reimbursement for moving and relocation expenses. The defendant submits the following claims for our consideration: (1) whether the trial court erred in finding that the defendant was the declarant of Balance Rock Condominiums; (2) whether the trial court erred in applying the provisions of § 47-88d where the plaintiffs occupancy of the converted rental unit was terminated by virtue of a summary process judgment based on nonpayment of rent; (3) whether the trial court erred in refusing to admit into evidence the defendant’s exhibit regarding costs incurred in the summary process action, and in failing to apply the amount reflected in said exhibit as a setoff to the plaintiff’s claim; and (4) whether the trial court erred in awarding attorney’s fees to the plaintiff pursuant to General Statutes § 52-251a. We find no error.

The trial court could reasonably have found the following facts. This matter was commenced on June 6, 1984, as a small claims action in which the plaintiff sought to recover from the defendant Balance Rock Associates reimbursement for moving and relocation expenses pursuant to § 47-88d. The defendant maintained a residential apartment dwelling known as Balance Rock Apartments in Seymour. Pursuant to a declaration of condominium conversion, the apartment dwelling was converted into a condominium. The plaintiff, a tenant who chose not to purchase a condominium unit, sought reimbursement under the statute following the conversion of the apartment complex in 1983.

The defendant moved to dismiss and, subsequently, to transfer the small claims action to the regular docket for defense and right of appeal. The case was not dismissed, but was later transferred to the regular docket of the Superior Court. Practice Book § 572. This action was referred to a state trial referee for hearing. After trial, the court issued an oral decision and rendered judgment for the plaintiff. The court found that the defendant was the declarant of Balance Rock Condominiums within the meaning of § 47-88d and awarded the plaintiff damages in the amount of $1000 as provided for in the statute. The court also awarded the plaintiff interest in the amount of $191.67, together with attorney’s fees of $250. The defendant thereupon filed this appeal.

In its first claim, the defendant challenges the sufficiency of the evidence to support the trial court’s factual finding that it was the declarant of Balance Rock Condominiums under § 47-88d. Specifically, the defendant maintains that the evidence was not sufficient to prove that a relationship existed between itself and Mark David Associates, an undisputed declarant of Balance Rock Condominiums, which would establish and support the court’s finding that Mark David Associates and Balance Rock Associates were “one and the same party, however designated . . . .”

Our review of the trial court’s factual findings is limited solely to the determination of whether they are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, they are clearly erroneous. Practice Book § 4061; Cookson v. Cookson, 201 Conn. 229, 242-43, 514 A.2d 323 (1986); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980); Fortier v. Laviero, 10 Conn. App. 181, 183, 522 A.2d 313 (1987); Cook v. Nye, 9 Conn. App. 221, 224, 518 A.2d 77 (1986). The function of an appellate court is to review, and not retry, the proceedings of the trial court. ‘“We cannot retry the facts or pass upon the credibility of the witnesses.’ Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . . .” Pandolphe’s Auto Parts, Inc. v. Manchester, supra, 220; Buddenhagen v. Luque, 10 Conn. App. 41, 44-45, 521 A.2d 221 (1987); Cook v. Nye, supra.

“As a corollary of our limited scope of review, in an appeal based on a claim of evidentiary insufficiency regarding a factual finding we do not examine the record to determine whether the judge or trier of fact could have made a finding other than the one made. Instead, we first determine whether there is evidence to support the finding. If not, the finding is clearly erroneous. Even if there is evidence to support it, however, a finding is clearly erroneous if ‘in view of the evidence and pleadings in the whole record [this court] is left with the definite and firm conviction that a mistake has been committed.' Doyle v. Kulesza, 197 Conn. 101, 105, 495 A.2d 1074 (1985).” Buddenhagen v. Luque, supra, 45.

We have carefully reviewed the record, trial transcript and exhibits in this appeal. We are convinced that the trial court’s factual finding that the defendant was the declarant of Balance Rock Condominiums within the meaning of § 47-88d is firmly supported by the evidence.

The defendant’s second claim is that the trial court erred in applying the provisions of § 47-88d where the plaintiff’s occupancy of the converted unit had been terminated by a summary process judgment based on nonpayment of rent. In the proceedings below, the defendant raised this claim as a special defense. The defendant now argues that the trial court’s decision cannot stand because the court did not reveal whether its judgment for the plaintiff reflected a lack of proof regarding the defense or a denial of the claim on its merits. The defendant also maintains that it was never the intent of the legislature to permit recovery for relocation expenses pursuant to § 47-88d where the occupancy of the converted unit is terminated for nonpayment of rent.

Even if the trial court’s judgment did not reveal the basis for its decision, there is no merit to the defendant’s claim that it may have been based on a lack of proof regarding the circumstances of the plaintiffs termination of her occupancy of the converted unit. Our review of the record reveals that the trial court took judicial notice of the judgment rendered against the plaintiff in the summary process action based upon nonpayment of rent. See State v. Bunkley, 202 Conn. 629, 648, 522 A.2d 795 (1987); Guerriero v. Galasso, 144 Conn. 600, 605, 136 A.2d 497 (1957). We, therefore, need only consider the defendant’s claim that the judgment of the trial court may have been a reflection of its disagreement with the defendant’s assertion that § 47-88d prohibits a recovery by a tenant whose occupancy has been terminated by an eviction.

The defendant argues that it was not the intent of the legislature that § 47-88d apply to a circumstance where the party seeking reimbursement was evicted from the converted unit for nonpayment of rent. In seeking to discern legislative intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to legislative practice and policy, and to judicial construction. Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 589, 522 A.2d 771 (1987); Dart & Bogue Co. v. Slosberg, 202 Conn. 566, 572, 522 A.2d 763 (1987); Gill v. Petrazzuoli Bros., Inc., 10 Conn. App. 22, 30, 521 A.2d 212 (1987).

We begin our analysis with the language of the statute. Section 47-88d provides: “Any declarant of a conversion condominium shall pay moving and relocation expenses to each household which does not purchase its dwelling unit and does not have an adjusted gross income ... of more than twenty-one thousand dollars, if unmarried, or twenty-five thousand dollars jointly with spouse, if married . . . .” This language, which sets out the eligibility requirements for reimbursement under the statute, makes no mention of circumstances which would disqualify an otherwise eligible household. It is, therefore, not apparent on the face of the statute whether the legislature intended that tenants who are evicted for nonpayment of rent following the conversion of their units are eligible for reimbursement. Finding no intent revealed in the words of the statute, we normally turn to its legislative history to reveal the intent of the legislature. In this instance, however, the defendant cites no legislative history regarding § 47-88d which expresses the intent of the legislature concerning the applicability of that section to tenants evicted for nonpayment of rent.

The intent of the legislature, which we find to be one permitting reimbursement even where the former tenant has been evicted for failure to pay rent, is discerned through an examination of the policy underlying the provisions of § 47-88d. The statute, which is included in the Condominium Act, General Statutes §§ 47-68a through 47-90c, is part of an overall statutory scheme to ease the burden upon nonpurchasing tenants caused by the conversion of their rental apartments to condominium units. Section 47-88d provides that certain households electing not to purchase a converted unit may be reimbursed by the declarant of the condominium conversion for moving and relocation expenses resulting from the nonpurchase of a condominium unit. The defendant, found to be the declarant by the trial court, asks us to hold that when a household otherwise forced to move because of the conversion has been evicted for nonpayment of rent, the provisions of § 47-88d do not apply.

Because the language of the statute does not clearly indicate a legislative intent to foreclose such households from the reimbursement provisions of the statute, and because there is no legislative history specifically stating the intent of the legislature to do so, we are reluctant to limit the eligibility requirements of § 47-88d to tenants who have not been evicted for nonpayment of rent. Section 47-88d is remedial in nature. Such statutes are to be liberally construed to advance their remedy. We will therefore construe its provisions broadly and in favor of the persons who are to benefit from its existence. See Pullen v. Otis Elevator Co., 292 F. Sup. 715 (N.D. Ga. 1968).

We note the distinction between the landlord’s right to evict a tenant for nonpayment of rent and the tenant’s right to reimbursement under § 47-88d. If a tenant chooses not to purchase his rental unit after it has been converted to a condominium unit, the responsibility for payment of rent under the terms of the lease, oral or written, between the landlord and the tenant does not cease. The landlord’s right to institute a summary process action against a tenant in arrears on rent payments is in no way affected by the tenant’s right to reimbursement under § 47-88d. Both the landlord and the tenant have a right to redress which is independent of the other’s remedy; the landlord has the right to payments due under the terms of the lease, and the tenant has the right to reimbursement under the remedial provisions of the statute. The two remedies are separate and distinct. By way of illustration, we note that § 47-88b (g) provides: “No eviction proceedings shall be brought against any of the occupants resident in any building or group of buildings converted to condominium ownership . . . within the term of any existing lease or within the one hundred eighty-day period provided under subsection (b), whichever is later, for failure to purchase or any other reasons applicable to termination of tenancy other than nonpayment of rent or similar justifiable reasons ordinary to landlord rights where a lease exists assuring quiet enjoyment.” (Emphasis added.)

We therefore find within the parameters of the policy underlying the statute our conclusion that the reimbursement provisions of § 47-88d are separate from a landlord’s right to institute a summary process action for nonpayment of rent. The statutory obligation of reimbursement under § 47-88d prevails where the conversion precedes the eviction for nonpayment of rent. Viewed in this light, we conclude that the trial court did not err in holding that the plaintiff, a tenant of a converted condominium who chose not to purchase a unit, was entitled to reimbursement under § 47-88d despite her eviction for failure to pay rent after, the conversion was declared.

The defendant’s third claim is that the court erred in refusing to admit into evidence the defendant’s bill for legal services and expenses incurred in the summary process action against the plaintiff, and in failing to apply the amount reflected in said statement as a setoff to the plaintiff’s claim. The law of setoff is governed by General Statutes § 52-139. The relevant portion of that statute provides: “(a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other.” (Emphasis added.) A condition precedent to the application of § 52-139 is that the defendant’s claim arise from a debt due by the plaintiff. See Savings Bank of New London v. Santaniello, 130 Conn. 206, 211, 33 A.2d 126 (1943). It is the defendant’s burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings. Practice Book § 168; Peters Production, Inc. v. Dawson, 182 Conn. 526, 528, 438 A.2d 747 (1980).

The defendant has not affirmatively alleged the existence of any debt due and owing it from the plaintiff. A debt is defined as an “unconditional and legally enforceable obligation for the payment of money.” Ballentine’s Law Dictionary (3d Ed). The expenses which the defendant sought to recover by way of setoff were the attorney’s fees and expenses incurred in the earlier summary process action. “The rule in Connecticut is that absent contractual or statutory authorization, each party must pay its own attorney’s fees.” Gino’s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984). The defendant does not allege the existence of any agreement or obligation on behalf of the plaintiff to pay the fees and expenses it seeks to recover by way of setoff. It merely alleges: “If the plaintiff is entitled to recover, defendant is entitled to a setoff for the expenses incurred by it as a result of the delict of the plaintiff.” (Emphasis added.) The trial court, therefore, did not err in refusing to admit into evidence the bill paid by the defendant for legal services and expenses incurred in the eviction action, and properly refused to consider such amount as a setoff against the plaintiff’s claim.

The defendant’s final claim is that the trial court erred in awarding attorney’s fees to the plaintiff pursuant to General Statutes § 52-25la. This statute provides in relevant part: “Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the superior court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court.” This language allows the court discretion in whether attorney’s fees should be awarded. The case before us is clearly one contemplated by the provisions of the statute. The defendant claims that the plaintiff is not entitled to attorney’s fees because her attorney had filed his appearance and was engaged in the prosecution of her claim prior to the transfer of the case to the regular docket. We find no such limitation in the language of § 52-251a, nor has the defendant pointed to any legislative history supporting its position. The defendant has proffered no compelling reason to warrant judicial expansion of the statutory requirements of § 52-25la. “Accordingly, it is unquestioned that the trial court was entitled to award to the plaintiff, as the prevailing party, both costs and reasonable counsel fees for services performed during the pendency of the suit.” Moffitt v. Horrigan, 37 Conn. Sup. 873, 875, 441 A.2d 207 (1982). We find that the trial court did not abuse its discretion in awarding the plaintiff attorney’s fees.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 47-88d provides: “reimbursement for moving and relocation expenses. Any declarant of a conversion condominium shall pay moving and relocation expenses to each household which does not purchase its dwelling unit and does not have an adjusted gross income for federal income tax purposes of more than twenty-one thousand dollars, if unmarried, or twenty-five thousand dollars jointly with spouse, if married, in an amount equal to the amount charged for two months’ rent for such dwelling unit at the time the conversion was declared or one thousand dollars, whichever is greater.”

       General Statutes § 52-251a provides: “costs, attorney’s fees on SMALL CLAIMS MATTER TRANSFERRED TO REGULAR DOCKET. Whenever the plaintiff prevails in a small claims matter which was transferred to the regular docket in the superior court on the motion of the defendant, the court may allow to the plaintiff his costs, together with reasonable attorney’s fees to be taxed by the court.”

       In the original complaint filed in connection with her small claims action, the plaintiff lists two defendants: “Balance Rock Associates, c/o Mark David Associates” and “Balance Rock Assoc., Limited Partnership.” “Balance Rock Associates” is named as the sole defendant in the plaintiff’s substitute complaint filed after this action had been transferred to the regular docket of the Superior Court.

       On July 19,1984, the defendant filed a motion to dismiss the small claims action for failure to make proper service. Although this motion is not relevant to the issues on appeal, we observe that the record is unclear as to whether it was addressed by the trial court. It is evident, however, that this matter was resolved in the small claims court without dismissal of the action.

       Practice Book § 572 provides in relevant part: “A case duly entered on the small claims docket of a geographical area or housing session court location shall be transferred to the regular docket of the superior court or to the regular housing docket, respectively, if the following conditions are met:
      “(1) The defendant, or the plaintiff if the defendant has filed a counterclaim, shall file a motion to transfer the case to the regular docket. This motion must be filed on or before the answer date.
      “(2) The motion to transfer must be accompanied by (a) a counterclaim in an amount greater than the jurisdiction of the small claims court; or (b) an affidavit stating that a good defense exists to the claim and setting forth with specificity the nature of the defense, or stating that the case has been properly claimed for trial by jury.
      “(3) The moving party shall comply with such terms as are fixed by the court, which shall at least provide for not less than the amount of an entry fee of a case in the superior court.”

       We note that the defendant could have moved for an articulation of the trial court’s judgment to clarify the basis of its decision. See Practice Book § 4051.


text:
    State of Connecticut v. Rolf Almgren
    (4285)
    Hull, Daly and Bieluch, Js.
    Argued May 14
    decision released September 15, 1987

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

      Michael E. O’Hare, assistant state’s attorney, with whom, on the brief, was Julian Schlesinger, special assistant state’s attorney, for the appellee (state).
   Bieluch, J.

The defendant appeals from a judgment of conviction, after a jury trial, of disorderly conduct in violation of General Statutes § 53a-182 and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court erred in failing to dismiss the charges against him for lack of a speedy trial. We agree and therefore find error.

The jury could reasonably have found the following facts. The defendant was arrested in the early morning hours of September 4,1982, after two Enfield police officers were called by the desk clerk of the Harley Hotel in Enfield because of a noisy party involving the defendant, his wife, and a group of family members and friends gathered in his room. The defendant became involved in an altercation with the police and, as a result, was arrested and charged with assault on an officer in violation of General Statutes § 53a-167c as well as the charges for which he was convicted.

The following procedural facts are relevant to the defendant’s claim on appeal. The defendant was arraigned on September 21, 1982; he entered a plea of not guilty to all charges and elected to be tried by a jury. The case was pretried on October 2, 1982, at which time the defendant was advised that there would be no plea bargain and he would have to go to trial on the original charges. The case was assigned for trial successively on October 27, 1982, December 3, 1982, January 27, 1983, March 8, 1983, April 8, 1983, May 17,1983, July 6,1983, August 19,1983, and September 1, 1983.

On September 6, 1983, the defendant was notified that his case was on “standby,” subject to a one and one-half hour notice to commence trial, but he did not go to trial from that assignment. The case was thereafter further assigned for trial on October 4,1983, and November 1, 1983.

On December 2, 1983, he was ordered to a further pretrial conference, again to no avail, but he was given the status of “first ready case,” subject to a two hour call that never came. Thereafter, the case was assigned for trial on January 4, February 7 and March 6,1984. The defendant’s counsel was called to a third pretrial on March 20,1984, again with no resulting agreement. He was then informed that the defendant’s case was the “next ready” case to be tried. The defendant and his counsel prepared for trial again. The defendant this time issued subpoenas for about twenty-five witnesses at a cost of approximately $700. These subpoenas expired when the case was not reached as scheduled. The case continued, however, to be assigned monthly through July, 1984.

On April 5, 1984, nineteen months after his arrest, the defendant filed the first of three written motions to dismiss for lack of a speedy trial. This motion was not set down for a hearing. Therefore, on July 9,1984, the defendant refiled his original motion to dismiss for lack of a speedy trial, together with a second motion to dismiss on the same ground, but with a complete recital of the case assignments for appearance and trial to that date. The trial court thereafter denied both motions.

At the time of the court’s denial of the defendant’s first two motions to dismiss for lack of a speedy trial on July 23,1984, the case against him was over twenty-two and one-half months old and had, by the court’s own count, been assigned for trial twenty times. The defendant and his counsel, both residents of Fairfield County, had appeared on thirteen occasions ready for trial at the Superior Court for geographical area number thirteen, jury trials for which were then being held in Manchester. Although the trial court acknowledged the lengthy delay and frustration experienced by the defendant, it concluded that under the balancing test set out in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), “the interests of the people of the state prevail.” The court subsequently ordered that the defendant’s case would be the “number one ready” case on October 1, 1984. The defendant, however, was not allowed to go on trial on subsequent assignment dates of October 2, 1984, November 27, 1984, January 22, 1985, February 5, 1985, February 26, 1985, and March 13, 1985.

When the case was assigned for trial on April 30, 1985, the defendant filed his third motion to dismiss the information for lack of a speedy trial. The court heard and denied the defendant’s motion on the same day, after which trial immediately began with jury selection, thirty-two months after the defendant was arrested, and after twenty-five assignments for trial, some of which were expressly declared by the court to be of top priority status.

The defendant claims that this delay in his prosecution was a violation of his constitutional right to a speedy trial and, consequently, that the trial court should have dismissed the charges against him. “The sixth amendment guarantee of a speedy trial is a fundamental right applicable to the states through the fourteenth amendment to the United States constitution. Klopfer v. North Carolina, 386 U.S. 213, 223, 87 S. Ct. 988, 18 L. Ed. 2d 1 (1967). This right is also guaranteed by the Connecticut constitution, article first, § 8.” State v. Johnson, 190 Conn. 541, 544, 461 A.2d 981 (1983). The United States Supreme Court and the Connecticut Supreme Court have stated that there are four factors which should be considered in assessing a defendant’s constitutional right to a speedy trial. They are: “Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo, supra, 530; State v. Johnson, supra, 544-45. This balancing test is to be applied on a case by case basis. “ ‘None of the factors standing alone demands a set disposition; rather it is the total mix which determines whether the defendant’s right was violated.’ State v. Johnson, [supra, 544].” State v. Gasparro, 194 Conn. 96, 99-100, 480 A.2d 509 (1984); cert. denied, 474 U.S. 828, 106 S. Ct. 90, 88 L. Ed. 2d 74 (1985). Our consideration of the four Barker factors leads us to the conclusion that the defendant has established that he was denied his constitutional right to a speedy trial.

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.” Barker v. Wingo, supra. The defendant’s arrest on September 4,1982, activated the protection afforded him by the constitutional speedy trial guarantee. Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 46 L. Ed. 2d 205 (1975). The defendant’s trial began on April 30,1985, thirty-two months later. The state concedes that this delay is sufficiently long to warrant further inquiry. The Connecticut Supreme Court and this court have found that similar delays, while not sufficient in themselves to establish a speedy trial violation, were sufficient to warrant inquiry into the other Barker factors. See, e.g., State v. Gasparro, supra, (three and one-half years); State v. Davis, 192 Conn. 739, 474 A.2d 776 (1984) (twenty-six months); State v. Cleary, 3 Conn. App. 349, 488 A.2d 831 (1985) (thirty-six months).

We next consider the reasons for the delay in the defendant’s prosecution. Except for a brief continuance sought by the defendant, the state bears the responsibility for the thirty-two month delay between the date of the defendant’s arrest and the commencement of his trial. The state assigns docket overcrowding as its reason to justify the delay. “While docket congestion does not justify or exeuse delay; State v. Davis, [supra, 742]; it is considered a neutral reason and is ‘weighed less heavily against the state than purposeful delaying tactics.’ State v. Gasparro, [supra, 100]. This reason must nonetheless be considered ‘since the ultimate responsibility for such circumstances must rest with the government rather than the defendant.’ Barker v. Wingo, supra, 531.” State v. Flowers, 198 Conn. 542, 550-51, 503 A.2d 1172 (1986). ‘The state’s explanation, its crowded docket, while not favored, still does not establish the defendant’s case.” State v. Lloyd, 185 Conn. 199, 209, 440 A.2d 867 (1981). Under the Barker test, the defendant must also establish that he asserted his right to a speedy trial and was prejudiced by the lack thereof. Barker v. Wingo, supra, 530.

The state, maintains that the defendant’s assertion of his right to a speedy trial was insufficient to prove that he was denied a speedy trial. The defendant’s assertion of this right by a motion to dismiss was not filed until nineteen months after his arrest. “This factor militates against the defendant’s claim. The failure to assert the right, while not constituting a waiver, does make it difficult for the defendant to prove that he was denied a speedy trial. Barker v. Wingo, supra, 528, 531-32.” State v. Johnson, supra, 545. On September 6, 1983, one year after his arrest, the defendant was advised that his prosecution was on a “standby” basis, subject to a one and one-half hour notice to commence trial. Three months later, he was again given the status of “first ready” case, subject to a standby notice of two hours. On March 20, 1984, his was the “next ready” case to be tried. For the period of seven months between September 6, 1983, and March 20, 1984, the defendant was “officially” informed by the court, a most reliable source, that his trial was imminent. A motion to dismiss for lack of a speedy trial in that interval under those circumstances could not have been expected, at least for a reasonable time from the official notifications. In fact, however, the defendant was misled by the court for that period and for a reasonable time after March 20, 1984, into thinking that he would be put to trial shortly, and even expended about $700 for the issuance of subpoenas that expired sixty days after issuance. See General Statutes § 52-144 (form of subpoena). When the defendant realized that his “standby” and “first ready” assignments on the trial docket were meaningless after relying upon the state’s official representations for over seven months, on March 31, 1984, he properly prepared for the first time a motion to dismiss for lack of a speedy trial, which he filed for the first time on April 9th, 1984. Furthermore, this motion to dismiss was itself delayed by the court for a ruling until July 23, 1984, and only after he had renewed the motion on July 9,1984. Under these circumstances, it is reasonable to assume that the defendant acted reasonably and delayed the filing of his first motion to dismiss based on an inspired belief that the commencement of his trial was imminent. A defendant should not be penalized because of inaction on his part which was reasonably prompted by the court’s repeated assurances, here in the form of imminent and hourly “standby” assignments for top priority of trial.

It is also significant that the defendant was not put to trial until April 30, 1985, thirteen months after he first asserted his right to a speedy trial by written motion. The defendant also filed two additional motions to dismiss protesting the lack of a speedy trial. This subsequent long delay under the circumstances here, in light of the defendant’s repeated and forceful assertions, becomes even less excusable for those very reasons. “We count the defendant’s assertion of his right heavily against the state . . . . ” State v. Flowers, supra, 548-49.

The final Barker factor to be considered is prejudice caused by the delay. “Prejudice, in the context of a speedy trial claim, ‘should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. The [United States Supreme Court] has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.’ Barker v. Wingo, supra, 532.” State v. Foshay, 12 Conn. App. 1, 16, 530 A.2d 611 (1987). The defendant here was not incarcerated and makes no claim on appeal that his defense was affected by the delay in his prosecution. The only factor applicable to this case is, therefore, the interest of minimizing anxiety and concern of the defendant. The United States Supreme Court has stated that “even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion and often hostility.” Barker v. Wingo, supra, 533. Our Supreme Court has observed that prejudice of this nature “is unfortunately present in every case of pretrial delay.” State v. Flowers, supra, 553. We emphasize, however, that the defendant’s life was disrupted and he suffered inconvenience, embarrassment, loss of earnings, extended retention of counsel and the stigma of pending criminal charges during a thirty-two month delay in the prosecution of relatively minor criminal charges. We find the egregious conduct of the state in delaying the defendant’s trial and day of judgment on such charges to be in the nature of harassment. The defendant, a self-employed gardener, was required to lose time from work for each court appearance. The defendant was also required to retain private counsel for his defense over an unduly long period, as well as to prepare subpoenas for witnesses several times, at substantial cost. We find it unjust and unfair that a person accused of relatively minor offenses should be so burdened for thirty-two months. Present time standards for trial, although not applicable here, support this conclusion.

An affirmative showing of actual prejudice is not essential in a speedy trial claim when the defendant is able to show that the other three Barker factors weigh heavily against the state. State v. Flowers, supra, 551-52. Therefore, even if we do not consider the unnecessary prolonged anxiety and concern suffered by the defendant to be of a convincing prejudicial nature, an affirmative showing of this prejudice would not be needed where, as here, the other three factors strongly implicate the state. The thirty-two month delay is substantial; the reason for the delay, court congestion, is not redounding to the state’s credit; and the defendant’s assertion of his right to a speedy trial weighs heavily in his favor. “ ‘The reason for dispensing with the prejudice requirement entirely when the other three factors point heavily toward a violation of speedy trial is deterrence; the prosecution should not be permitted to engage in inexcusable misconduct on the hope that the defendant will not be able to make out a case of [actual] prejudice. Where such misconduct has occurred, the state cannot complain that the legitimate interests of its criminal justice system, being pursued in good faith, are being sacrificed because of an honest mistake in a case in which no ultimate harm has been done.’ Turner v. Estelle, 515 F.2d 853, 858 (5th Cir. 1975), cert. denied, 424 U.S. 955, 96 S. Ct. 1431, 47 L. Ed. 2d 361 (1976); see also Gray v. King, 724 F.2d 1199, 1204 (5th Cir.), cert denied, 469 U.S. 980, 105 S. Ct. 381, 83 L. Ed. 2d 316 (1984).” State v. Flowers, supra, 552.

In State v. Cleary, supra, we upheld the trial court’s dismissal of robbery and larceny charges where the state was not ready to proceed with a trial thirty-six months after the arrest and after five scheduled trial dates spanning a period of six months. Under those circumstances we stated: “It is unnecessary to decide whether the facts of this case warrant the conclusion that the defendant was deprived of his constitutional right to a speedy trial. It is only necessary to decide whether the state failed to prepare diligently for trial.” Id., 353.

The defendant’s prosecution was assigned for trial twenty-five times, twice in 1982, nine times in 1983, nine times in 1984 and five times in 1985. From September 6,1983, twelve months after his arrest, his trial was in a standby ready or next ready trial status, but was not reached for trial until twenty months later. The record belies the state’s claim that a congested court docket prevented the case from slipping from the “first ready” or “standby” trial status into the next available trial slot and courtroom between September 6, 1983 and April 30,1985. Except for one brief continuance sought by the defendant, he was at all times ready, prepared and expecting to go to trial and judgment. Thirty-two months after the defendant was first arrested and charged with relatively minor offenses, his trial finally began. As it was so aptly stated in State v. Cleary, supra, “[t]he facts speak for themselves.” The trial court erred in failing to grant the defendant's motion to dismiss the charges against him.

There is error, the judgment convicting the defendant of disorderly conduct and of interfering with an officer is set aside, and the case is remanded with direction to grant the defendant's motion to dismiss the charges against him for lack of a speedy trial.

In this opinion the other judges concurred.

       General Statutes § 53a-182 provides: “(a) A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior; or (2) by offensive or disorderly conduct, annoys or interferes with another person; or (3) makes unreasonable noise; or (4) without lawful authority, disturbs any lawful assembly or meeting of persons; or (5) obstructs vehicular or pedestrian traffic; or (6) congregates with other persons in a public place and refuses to comply with a reasonable official request or order to disperse.
      “(b) Disorderly conduct is a class C misdemeanor.”

       General Statutes § 53a-167a provides: “(a) A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.
      “(b) Interfering with an officer is a class A misdemeanor.”

       The defendant relies on both the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, but offers no separate analysis of the Connecticut constitution as a basis for different treatment between the federal and state constitutional claims. We decline to undertake such an analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).

       Although Practice Book § 956B does not apply to this case, the alleged offenses having occurred prior to its effective date, July 1,1983, we observe that under that rule the defendant’s trial would have been required to commence within eighteen months from the filing of the information or arrest before July 1, 1985, and within twelve months thereafter.
      These rules for speedy trial were adopted pursuant to the statutory mandate of General Statutes § 54-82L

       The state observes that the defendant points to matters not included in the record to strengthen his claim of diligent assertion of his right to a speedy trial. This court may not speculate as to events which occurred off the record. State v. Conrod, 198 Conn. 592, 598, 504 A.2d 494 (1986). The defendant’s claim is, therefore, reviewed “ ‘shorn of those “facts” which [he] seeks to add.’ ” State v. Cooper, 9 Conn. App. 15, 24, 514 A.2d 758 (1986).

       See footnote 4, supra.


author: Spallone, J.

text:
    State of Connecticut v. Emil J. Carsetti, Jr.
    (5012)
    Dupont, C. J., Hull and Spallone, Js.
    Argued June 3
    decision released September 15, 1987

      Conrad Ost Seifert, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant is appealing from the judgment of conviction, after a jury trial, of burglary in the third degree in violation of General Statutes § 53a-103, larceny in the fourth degree in violation of General Statutes § 53a-125, and being a persistent serious felony offender in violation of General Statutes § 53a-40 (b). The defendant contends that the trial court erred (1) in denying his motion for compliance, (2) in allowing into evidence testimony concerning a subsequent burglary committed by the defendant, and (3) in declining to charge the jury on the lesser included offense of criminal trespass in the second degree. We find no error.

The jury could reasonably have found the following facts. On June 25,1985, at about 11:40 a.m., Trooper Paul Mallon of the state police responded to a burglar alarm that emanated from the Bearn residence located in a rural area in the town of North Stonington. Mallon inadvertently drove beyond the Bearn residence, turned around and, while driving back, observed the defendant some fifty to seventy-five feet south of the house and heading down Wyassup Road. The defendant told Mallon that his van had overheated and that he was looking for water. The defendant declined the trooper’s offer of assistance.

Mallon then proceeded to the Bearn residence where he found that an exterior storm door had been pulled open and that the interior door had been smashed and forced open. Mallon checked the interior of the premises in order to determine whether anyone was present. Finding no one, he exited through the front door, crossed the front yard and approached a fence that ran along the road, where he found two oriental rugs on the lawn close to the road.

Mallon then drove south down Wyassup Road, the direction the defendant was last headed, but he did not see the defendant or anyone else. Mallon called for assistance and then came upon the defendant’s van parked at Arbor Acres, a large poultry farm north of the Bearn residence. The key was in the ignition and the trooper had no trouble starting the van. A short time later, Detective Ernest Lawson arrived on the scene to assist Mallon in searching for the burglar. Lawson thereafter came upon the defendant while travelling down a dead end road in the vicinity where the van was parked. The defendant was perspiring heavily, had removed his shirt and had fresh grass or leaf stains on the bottoms of his trousers and on his shoes. Lawson placed the defendant under arrest and returned with him to the Bearn residence where the defendant told the police that he was still having trouble with his van.

Detective Michael Malchik of the state police major crime unit went to the Bearn residence on the afternoon of the crime and confirmed that entry into the residence had been made by prying open the door. He found that several pieces of the door were on the ground and that a pane of glass had been broken on the interior door. He also took from the floor, as evidence, a piece of carpet padding that contained shoe prints later found to match the shoes worn by the defendant at the time of his arrest.

In addition to the testimony of the various police officers and an expert who testified as to the shoeprints, the state presented the testimony of a witness concerning a separate burglary which occurred at her home in Massachusetts after the defendant had been freed on bail from the charges in the present action. The court allowed the witness to testify after holding a hearing outside the presence of the jury in which it ruled that her testimony was admissible. The witness testified that on September 4, 1985, at about 11:30 a.m., she returned to her home in Millis, Massachusetts. Her home was an old large white colonial and was well secluded from the neighbors by woods and shrubs. As she entered the driveway, she saw a large car, with a Rhode Island registration, backed up to the house. She also saw that the solid wooden door had been cracked completely across and that the lock had been pried open. She then observed the defendant emerging from the house carrying five oriental rugs. The defendant then put the rugs down, went to the car, and closed the trunk, obscuring the license plate. The witness then entered her house where she found that tables had been toppled over, and that a larger rug had been rolled up. She also found a crowbar on the hall floor. She testified that nothing else had been taken from the house.

In his first claim of error, the defendant asserts that the trial court erred in refusing to order the state, pursuant to the defendant's motion for compliance, to turn over to him certain items of physical evidence in order that they might be examined by his expert witness.

The facts pertinent to this claim are as follows. On August 7, 1985, the defendant, pursuant to Practice Book § 741, filed a motion for production and discovery requesting, in pertinent part, that the state disclose and allow him to inspect, copy, photograph and have reasonable tests made (1) on exculpatory information or materials, and (2) on tangible objects within the possession, custody and control of any state agency which are material to the preparation of the defense or are intended for use by the prosecuting authority as evidence at trial. On January 4,1986, the defendant filed a motion for compliance, claiming that the state had failed to comply with the earlier discovery order in that it had not allowed the defendant to perform tests on certain clothing and footwear. The defendant attached to the motion a copy of a letter purported to be from his expert witness in which the expert claimed that he was not allowed to take the evidence into his custody in order to perform tests in his own laboratory. After hearing oral argument and receiving briefs from both parties, the trial court, Norko, J., denied the defendant’s motion with the exception that he be allowed to view the evidence.

The defendant, however, has failed to furnish us with a sufficient record to support his claim. The sole evidentiary basis for the defendant’s claim of error is representations made in the trial court by the defendant’s counsel and a copy of a letter by an alleged expert complaining he was denied the right to take custody of the evidence and to test it somewhere other than the police barracks. Representations by counsel are not “evidence” upon which an appellate court can rely when reviewing the findings of the trial court. Cologne v. Westfarms Associates, 197 Conn. 141, 154, 496 A.2d 476 (1985). Nor can a letter that was not made under oath and never admitted as an exhibit constitute evidence upon which we may evaluate the ruling of the trial court. See Grunschlag v. Ethel Walker School, Inc., 189 Conn. 316, 320, 455 A.2d 1332 (1983). Although counsel for the defendant and the state may be content to rely on their own representations when pressing or posing motions in the trial court, they run the risk that, on appeal of an unfavorable ruling, they will have failed to establish a sufficient factual basis, supported by testimony or exhibits, to furnish us an adequate record to support their claims of error. Here, the defendant has not provided us a sufficient factual basis in the pleadings, transcripts or exhibits to support his claim. Accordingly, there is no basis for us to conclude that the trial court erred in its findings of fact or conclusions of law.

In his second claim of error, the defendant contends that the trial court abused its discretion in permitting the state to introduce evidence concerning a subsequent burglary allegedly committed by the defendant while he was free on bail from the charges in the present action.

While evidence of a defendant’s other unconnected crimes is inadmissible to demonstrate the defendant’s bad character or to suggest that he has a propensity for criminal behavior; State v. Morowitz, 200 Conn. 440, 442, 512 A.2d 175 (1986); State v. Brown, 199 Conn. 47, 56, 505 A.2d 1225 (1986); State v. Braman, 191 Conn. 670, 675, 469 A.2d 760 (1983); such evidence may be admissible for other purposes, such as “to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency.” State v. Lizzi, 199 Conn. 462, 468, 508 A.2d 16 (1986); State v. Brown, supra; State v. Shindell, 195 Conn. 128, 133-34, 486 A.2d 637 (1985). “ ‘Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done.’ ” State v. O’Neill, 200 Conn. 268, 274, 511 A.2d 321 (1986); State v. Johnson, 190 Conn. 541, 548-49, 461 A.2d 981 (1983). Therefore, on review by an appellate court, “every reasonable presumption should be given in favor of the trial court’s ruling.” State v. Ryan, 182 Conn. 335, 337, 438 A.2d 107 (1980); State v. Barlow, 177 Conn. 391, 394, 418 A.2d 46 (1979).

Here, the state offered the testimony of a witness concerning a burglary committed by the defendant on September 4, 1985, claiming that the testimony was relevant to establish a common modus operandi and to identify the defendant as the perpetrator of the present offense. Where evidence of other misconduct is offered to show a common modus operandi, the marks which the other and the present offenses have in common must be such that it may logically be inferred that if the defendant is guilty of one he must be guilty of the other. State v. Morowitz, supra, 443; State v. Esposito, 192 Conn. 166, 172, 471 A.2d 949 (1984). It is not enough that the two offenses are similar. To establish a common design, the characteristics of the two offenses must be sufficiently distinctive and unique “as to be like a signature.” C. McCormick, Evidence, § 190 (3d Ed.); State v. Morowitz, supra; State v. Mandrell, 199 Conn. 146, 152, 506 A.2d 100 (1986).

An analysis of the two crimes discloses the following similarities: (1) both offenses occurred at almost exactly the same time of day; (2) in each instance, the defendant, a Rhode Island resident, had gone to an out of state location to commit the crime; (3) both homes were large white colonials; (4) each house was situated in a secluded location and was not visible from any neighboring homes; (5) both homes had been relatively unoccupied in the period prior to the burglaries; (6) in both cases forcible entry had been made by prying the lock and cracking the door frame; (7) the evidence in each case reasonably supported a finding that the same type of tool was used to gain entry into each of the homes; (8) at each location the defendant was operating a large vehicle which was registered in Rhode Island; (9) the two crimes occurred just over three months apart; (10) the latter crime was of the same nature as the crime charged in this case while the defendant was out on bail; (11) the only items of value taken in each burglary were oriental rugs which were about the same size; (12) and the defendant was identified as the person who was actually at or in the vicinity of both crimes. Although some of the similarities set forth above refer to legal or relatively common occurrences when standing alone, such a fact does not negate the uniqueness of the offenses when viewed as a whole. It is the distinctive combination of circumstances and actions which forms the “signature” or modus operandi of the crime; State v. Esposito, supra, 172; State v. Braman, supra, 677; and it is this “criminal logo” which justifies the inference that the person who committed one offense committed the other. State v. Morowitz, supra, 445. Under these facts and circumstances we conclude that the trial court did not abuse its discretion in concluding that the characteristics of the two offenses were sufficiently distinctive and unique to be “like a signature,” and in further concluding that the defendant’s participation in the Massachusetts burglary was highly probative so as to warrant evidence of that crime to be submitted to the jury.

Moreover, implicit in the trial court’s admission of the evidence of a “signature” crime is the conclusion that the probative value of the evidence outweighed any prejudicial effect the evidence might have. The points at which the two crimes interfaced were multiple and rendered the evidence highly probative. State v. Morowitz, supra, 447. The court was aware of the potential prejudicial effect of the evidence and carefully instructed the jury as to the limited purpose for which it was admitted. See id.; Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 193, 510 A.2d 972 (1986); State v. Braman, supra, 676. In doing so, the court expressly related to the jury that the testimony was not being offered “for the purpose of . . . establishing bad character [of the defendant] or his propensity for crime.” The state’s attorney followed the same course and referred only twice to the “signature” evidence and on both occasions for the limited purpose for which it was being offered. State v. O’Neill, supra, 275.

The defendant’s reliance on State v. Murrell, 7 Conn. App. 75, 507 A.2d 1033 (1986), is misplaced. In that case, the defendant was charged with a crime, in essence a street crime, involving the smashing of an automobile window and the taking of a car stereo. In holding that the trial court erred in admitting evidence of other car stereo thefts, we specifically noted the “unsophisticated” nature of the crime and the insignificant similarities proffered by the state. Id., 82. The similarities in the present case are far more significant and compelling than those in Murrell and compare favorably with other cases in which the exercise of the trial court’s discretion in admitting evidence of “signature” crimes has been upheld. See State v. Morowitz, supra; State v. Mandrell, supra; State v. Crosby, 196 Conn. 185, 191, 491 A.2d 1092 (1985); State v. Braman, supra; State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). Accordingly, we can find no abuse of the trial court’s discretion in its carefully informed and well considered decision to admit the testimony.

In his final claim of error, the defendant contends that the trial court erred in its refusal to charge the jury on criminal trespass in the second degree; General Statutes § 53a-108; as a lesser included offense of burglary in the third degree. General Statutes § 53a-103. While the defendant both requested the court to charge the jury on criminal trespass in the second degree and took exception to the court’s failure to give this charge, in neither case did the defendant provide any factual or legal basis, other than a quotation of State v. Whistnant, 179 Conn. 576, 427 A.2d 414 (1980), to support his claim. “ ‘[A]n “appropriate instruction” under State v. Whistnant must contain “ ‘a complete statement of the essential facts as would have justified the court in charging in the form requested.’ ” ’ ” State v. Ostroski, 201 Conn. 534, 558, 518 A.2d 915 (1986); State v. McKenna, 11 Conn. App. 122, 134, 525 A.2d 1374 (1987); see also Practice Book § 852. A citation or quotation of State v. Whistnant, supra, does not, by itself, provide the substantive principles of criminal law which would justify any particular instruction. State v. McIntosh, 199 Conn. 155, 160, 506 A.2d 104 (1986). Because the defendant failed to provide factual or legal support for his instruction, we find no error in the trial court’s refusal to instruct the jury on the elements of General Statutes § 53a-108.

There is no error.

In this opinion the other judges concurred.

       The record does not reveal the precise scope of Judge Norko’s ruling. The court did not file a memorandum of decision and the motion for compliance filed with the court was marked neither “granted” nor “denied.” The only indication in the record as to how Judge Norko ruled was a representation by the clerk of the court that he had talked to Judge Norko who had told him that “he did deny the motion with the exception that [the defendant] could be allowed to view the evidence and that it is on record at the G.A.” We note that the defendant never sought to have the trial court clarify or provide the factual basis for this ruling by filing a motion for articulation pursuant to Practice Book § 4051.

       The defendant framed his request to charge as follows: “Lesser Included Offense Criminal Trespass — A person is guilty of criminal trespass in the second degree when, knowing he is not licensed or privileged to do so, he enters or remains in a building.”
      The defendant took exception to the court’s failure to charge as requested in the following colloquy:
      “Mr. Seifert: . . . The second exception would be the omission of the requested charge on the lesser included offense of criminal trespass in the second degree which was on page 12 of the defense Requests to Charge—
      “The Court: Yes.
      “Mr. Seifert: — Which was simply the statutory definition of criminal trespass in the second degree.
      “The Court. Very well.
      “Mr. Seifert: On behalf — just for the record, on behalf of this objection to the lack of this charge, I would cite for the record, State of Connecticut versus John Whistnant, 179 Conn. 576, and very briefly I’ll state the grounds for this objection. ‘A defendant in a criminal matter is entitled to a jury instruction on a lesser included offense only if, one, such an instruction is requested; two, it is not possible to commit the offense charged in the manner described in the information without first committing the lesser offense; three, there is some evidence which justifies conviction of the lesser offense; and four, the proof on the elements which differentiates the lesser offense from the offense charged is sufficiently in dispute to permit a jury to reach a verdict of guilty of the lesser offense.’ On that basis, I take exception to that omission.
      “The Court: Very well.”