source: Caselaw Access Project

author: PETERS, J. MCDONALD, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. WILLIE GARVIN
    (SC 15578)
    Borden, Norcott, Katz, McDonald and Peters, Js.

      Argued May 29
    officially released August 5, 1997

      Katerina M. Rohner, special public defender, with whom was Donald D. Dakers, special public defender, for the appellant (defendant).

      Paul J. Ferencek, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael Pepper, assistant state’s attorney, for the appellee (state).
   Opinion

PETERS, J.

The principal issue in this certified appeal is whether, under General Statutes § 53a-172, multiple convictions for failure to appear arising out of the forfeiture of multiple separate bail bonds violate the constitutional prohibition against double jeopardy. The defendant, Willie Garvin, initially was charged in two separate informations. The first information charged him with conspiracy to commit robbery in the first degree in violation of General Statutes § 53a-48 (a) and § 53a-134 (a) (4), and the second charged him with sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21. Thereafter, the defendant also was charged with two counts of failure to appear in violation of § 53a-172. The defendant pleaded guilty and was sentenced on all five counts. On appeal to the Appellate Court, that court affirmed his convictions. State v. Garvin, 43 Conn. App. 142, 160, 682 A.2d 562 (1996). We granted the defendant’s petition for certification to appeal and now affirm the judgment of the Appellate Court.

The following facts are undisputed. On February 5, 1994, while the defendant was released pending the disposition of the initial conspiracy, sexual assault and risk of injury charges, he signed two $15,000 bail bonds, one for each of the two informations then pending against him. On November 7, 1994, pursuant to the Alford doctrine, the defendant pleaded guilty to both sets of charges.

Before accepting the defendant’s guilty pleas, the trial court informed him of its intent to impose a total sentence of fifteen years, execution suspended after eight years in prison, followed by three years probation. The court did not then have available a presentence investigation report to guide its final decision. See Practice Book § 909 et seq. (establishing procedures for evaluating presentence investigation reports). The court, therefore, also informed the defendant that it would not be bound by the proposed sentence, but that, if it imposed a greater sentence, the defendant could withdraw his pleas. The court also warned the defendant, however, that, if he failed to appear on the date set for his sentencing hearing, the court would not be bound by the sentence set forth in the plea agreement and the defendant would face additional charges of failure to appear.

The defendant failed to appear for his January 6, 1995 sentencing hearing. The trial court noted the defendant’s absence and informed his counsel that the court was no longer bound by the plea agreement and that the defendant would not be allowed to withdraw his pleas. The court also ordered forfeiture of both bonds and issued two bench warrants for the defendant’s arrest.

The defendant subsequently was apprehended and charged with two counts of failure to appear in the first degree in violation of § 53a-172. The two counts arose out of the fact that his failure to appear had caused his two bail bonds to be forfeited.

At his sentencing hearing on July 10,1995, the defendant sought, on one ground only, to withdraw his guilty pleas. He claimed then that he had been under the influence of narcotics at the time he had entered his pleas. The trial court denied this motion and imposed a total sentence of eighteen years, execution suspended after twelve years in prison, followed by three years probation, on the conspiracy to commit robbery in the first degree, sexual assault and risk of injury counts together. At the same hearing, the defendant pleaded guilty to both counts of failure to appear in violation of § 53a-172. The court then sentenced the defendant to one year of imprisonment on each count, to run concurrently with each other and with the sentence imposed with respect to the initial charges.

In this court, as he did in the Appellate Court, the defendant challenges the validity of his convictions on two grounds. He argues that the trial court: (1) violated his constitutional right not to be put twice into jeopardy by convicting him on two counts of failure to appear; and (2) violated his constitutional right to due process by not allowing him to withdraw his guilty pleas on the conspiracy to commit robbery, sexual assault and risk of injury charges after the trial court imposed a sentence greater than that to which he and the state originally had stipulated. Like the Appellate Court; State v. Garvin, supra, 43 Conn. App. 160; but on somewhat different grounds, we reject both of the defendant’s arguments.

I

We first address the defendant’s claim that his two convictions under § 53a-172 for breach of two separate bail bonds violated the constitutional prohibition against double jeopardy. Rejecting this claim, the Appellate Court acknowledged that there had been only one act, a failure to appear on a given day. Nonetheless, relying on State v. Candito, 4 Conn. App. 154, 161, 493 A.2d 250 (1985), the court concluded that this one act was sufficient to support the conviction for two offenses “because each charge of failure to appear involved an element that the other did not, namely, being charged with the commission of separate felonies.” State v. Garvin, supra, 43 Conn. App. 150. Without addressing the merits of that conclusion, we are persuaded that the defendant’s convictions do not violate the prohibition against double jeopardy because each breach of each bond constituted a separate act of failure to appear in violation of § 53a-172.

Although the defendant failed to raise this claim at trial, we will undertake appellate review pursuant to the four part Evans-Golding test. State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Under this test, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” State v. Golding, supra, 239-40. Because the record is adequate for review and because this issue implicates a fundamental constitutional right, the first two parts of the test have been met. Pursuant to the third part of the Evans-Golding test, we, therefore, must determine whether the alleged constitutional violation clearly exists.

The defendant claims that his two convictions under § 53a-172 for failure to appear violate his state and federal constitutional rights against double jeopardy. The double jeopardy clause of the fifth amendment to the United States constitution applies to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 787, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990). In addition, our state constitution impliedly incorporates protection against double jeopardy within the provisions of article first, §§ 8 and 9. State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995); State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).

In accordance with Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), double jeopardy claims challenging the constitutional validity of convictions pursuant to two distinct statutory provisions are traditionally analyzed by inquiring whether each provision requires proof of a fact of which the other does not require proof. State v. Hill, 237 Conn. 81, 100, 675 A.2d 866 (1996). This is the analysis on which the Appellate Court relied in this case. State v. Garvin, supra, 43 Conn. App. 147-50. We prefer a different form of analysis in the circumstances of this case, in which only one statutory provision is at issue.

“The proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.” (Emphasis in original; internal quotation marks omitted.) State v. Freeney, 228 Conn. 582, 587, 637 A.2d 1088 (1994). “The issue, though essentially constitutional, becomes one of statutory construction.” State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985).

“In construing any statute, we seek to ascertain and give effect to the apparent intent of the legislature.” United Illuminating Co. v. Groppo, 220 Conn. 749, 755, 601 A.2d 1005 (1992). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997).

We begin with the language of the statute. Section 53a-172 (a) provides: “A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear.” Although the defendant argues that the gravamen of the offense is the failure to appear at the time and place specified, the state contends that the operative language is “[failure] to appear when legally called according to the terms of a bail bond or promise to appear,” not mere absence from the court. According to the state, conduct resulting in the forfeiture of multiple bonds, even conduct consisting of a single act of failing to appear, furnishes a basis for finding multiple violations of § 53a-172. We agree.

“ ‘A bail bond is a contract between the government and the defendant and his surety.’ ” United States v. Vaccaro, 51 F.3d 189, 193 (9th Cir. 1995). Each bail bond or promise to appear constitutes a contract that can be forfeited, not only upon the defendant’s failure to appear, but also upon breach of other conditions in the agreement. United States v. Gigante, 85 F.3d 83, 85 (2d Cir. 1996). In this case, the language of the bail bonds evidences, for each bond, a contract in which the defendant promised to appear wherever his appearance might be relevant to the charges against him, and not only at any one designated time and place. Specifically, the defendant promised to appear “at any other place and time to which the charge(s) against me may be continued and in any other court to which the charge(s) against me may be transferred.” The defendant executed two such bonds, one for each file, and although both bonds recited the same form language, each constituted an independent promise to appear.

The defendant’s contention that the single act of failing to appear for a particular proceeding is the gravamen of § 53a-172 is untenable because, under that interpretation of § 53a-172, the number of prosecutions the defendant could face hinges on whether hearings on his two separate files were scheduled together or apart. The scheduling of court appearances on separate files, however, is a matter of administrative convenience that may change over the lifetime of a prosecution. For reasons of convenience, files secured by separate bonds or promises to appear may be scheduled together at one point in the prosecution and separately at a later stage. To make the unit of prosecution under § 53a-172 the act of failing to appear for a court appearance, regardless of the number of bonds breached by that single failure to appear, would exalt the consequences of scheduling practice over the underlying purpose of § 53a-172, which is the protection of the integrity of the bail bond system.

Moreover, the defendant’s construction of the statute would convert it into an additional sanction for contempt of court, rather than a sanction to deter the violation of bail bonds. Our courts have long been recognized to have an inherent power, independent of any statute, to hold a defendant in contempt of court. State v. Murray, 225 Conn. 355, 362-64, 623 A.2d 60, cert. denied, 510 U.S. 821, 114 S. Ct. 78, 126 L. Ed. 2d 46 (1993); Middlebrook v. State, 43 Conn. 257, 268, 21 A. 650 (1876). The purpose of the contempt power is to enable a court to preserve its dignity and to protect its proceedings. State v. Murray, supra, 364. Section 53a-172 was intended to serve a different function, namely, to protect the integrity of the bail bond system. To effectuate that purpose, we conclude that the bail bond itself is the unit of prosecution for the statutory offense of failure to appear.

Tellingly, in the past, we have distinguished failure to appear within the meaning of § 53a-172 from failure to appear at trial and, in so doing, have emphasized the importance of the statutory phrase “according to the terms of his bail bond or promise to appear.” State v. Zeko, 176 Conn. 421, 427, 407 A.2d 1022 (1979). In Zeko, we held that the defendant was “tried for failure to appear when legally called according to the terms of his bail bond” not “for failure to be present at trial.” Id., 427. Thus, we already have impliedly recognized that § 53a-172 is intended to punish breach of a bail bond, and that the bond itself is the unit of prosecution under the statute.

The legislative history of § 53a-172 lends further support to our conclusion that the purpose of the statute is to protect the integrity of the bail bond system. As a part of a comprehensive modernization of the bail bond system in 1967, the legislature made it a separate criminal offense wilfully to fail to appear when required to do so. See 12 H.R. Proc., Pt. 9, 1967 Sess., p. 3871. Testifying in favor of one of the bills incorporated into “An Act Concerning Bail Procedures for Arrested Persons,” then executive secretary of the judicial council John Halloran emphasized that the penalties authorized by the bill were distinct from a trial judge’s “authority to hold the non-appearing defendant in contempt of court.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1967 Sess., pp. 577-78.

To counter these statutory arguments, the defendant contends that the rule of lenity that we applied in State v. Rawls, supra, 198 Conn. 121-22, requires us to uphold his double jeopardy argument in this case. “The touchstone of this rule of lenity is statutory ambiguity.” (Internal quotation marks omitted.) Id., 122. In Rawls, we disallowed multiple prosecutions under the predecessor to General Statutes § 21a-279 for simultaneous possession of cocaine and heroin. We reasoned that, because the statute at issue was ambiguous with respect to whether multiple punishments were authorized, any doubt should be resolved against the imposition of multiple punishments. Id. Here, by contrast, we discern no statutory ambiguity. The language of § 53a-172, informed by its legislative history, makes clear that the unit of prosecution for failure to appear is the bail bond itself.

Accordingly, the defendant has not succeeded in establishing a double jeopardy violation and has failed to satisfy the third prong of the Evans-Golding test. We, therefore, affirm his convictions for two counts of failure to appear in violation of § 53a-172.

II

The defendant next claims that the plea agreement he entered into with the trial court violated his constitutional right to due process of law. He argues that: (1) the trial court failed to articulate and clarify the circumstances in which he would forfeit his right to withdraw his pleas; and (2) even if the terms of his withdrawal right were clear, the plea agreement was an illusory bargain because it bound him, but not the court, to the agreed sentence. We reject both contentions.

Although the defendant raised no due process claims in the trial court, we will review these issues because the record is adequate for review and because they implicate fundamental constitutional rights. Under the applicable Evans-Golding analysis, we must determine whether a due process violation clearly exists. State v. Golding, supra, 213 Conn. 239-40.

The Appellate Court concluded that no violation of due process had occurred. State v. Garvin, supra, 43 Conn. App. 160. It construed the plea agreement as conferring upon the defendant the right to withdraw his pleas following the court’s imposition of a greater sentence for any reason. The Appellate Court reasoned that, by seeking to withdraw his pleas on the basis of his alleged intoxication, the defendant had waived his right to withdraw his pleas on the ground that his sentence was harsher than he had anticipated. Id. Although we construe the plea agreement differently, we concur in the Appellate Court’s conclusion that the defendant’s due process rights were not violated.

A

It is axiomatic that the trial court judge bears an affirmative, nondelegable duty to clarify the terms of a plea agreement. “[U]nless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable.” State v. Childree, 189 Conn. 114, 119, 454 A.2d 1274 (1983); see McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969); State v. Lopez, 197 Conn. 337, 341, 497 A.2d 390 (1985). When a defendant pleads guilty, he waives important fundamental constitutional rights, including the privilege against self-incrimination, the right to a jury trial, and the right to confront his accusers. State v. Childree, supra, 120. “These considerations demand the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and its consequences. Boykin v. Alabama, [395 U.S. 238, 243-44, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)].” State v. Childree, supra, 120.

We, therefore, require the trial court affirmatively to clarify on the record that the defendant’s guilty plea was made intelligently and voluntarily. State v. Childree, supra, 189 Conn. 120. In order to make a knowing and voluntary choice, the defendant must possess an understanding of the law in relation to the facts, including “all relevant information concerning the sentence.”State v. Collins, 176 Conn. 7, 9, 404 A.2d 871 (1978). The defendant also must be aware of the “actual value of any commitments made to him by the court . . . because a realistic assessment of such promises is essential in making an intelligent decision to plead guilty.” (Citations omitted.) Sherbo v. Manson, 21 Conn. App. 172, 179, 572 A.2d 378, cert. denied, 215 Conn. 808, 576 A.2d 539, cert. denied, 215 Conn. 809, 576 A.2d 539 (1990). A “determination as to whether a plea has been knowingly and voluntarily entered entails an examination of all of the relevant circumstances.” State v. Wright, 207 Conn. 276, 287, 542 A.2d 299 (1988).

The defendant contends, belatedly, in his reply brief to this court, that he did not understand that he could not withdraw his pleas if he failed to appear. The record reveals that the trial court did not say, in so many words, that the defendant would not have a right to withdraw his guilty pleas if he failed to appear for sentencing. If this omission had, in fact, created any misunderstanding about the circumstances under which the defendant would be bound to the plea agreement, the guilty pleas would have been rendered unknowing and, therefore, involuntary. “In order for a plea of guilty to be constitutionally valid, it must be equally voluntary and knowing. . . .” (Internal quotation marks omitted.) State v. Collins, supra, 176 Conn. 9.

In this case, however, the record indicates that the defendant was not, in fact, misled about the terms and conditions of the plea bargain. At the July 10 sentencing hearing, represented by counsel, the defendant sought to withdraw his pleas only on the ground that he had been intoxicated at the time he had entered them. He never claimed that he had expected to have the right to withdraw his pleas, after failing to appear, if the court imposed a harsher sentence than originally stipulated. Neither in his brief to the Appellate Court, nor in his main brief to this court, did the defendant claim any confusion concerning the operative terms of the plea agreement.

It is only in his reply brief to this court that the defendant now claims to have been surprised by the fact that he could not withdraw his pleas after he had failed to appear for sentencing. For procedural as well as substantive reasons, this claim cannot be sustained.

“It is a well established principle that arguments cannot be raised for the first time in a reply brief.” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 97-98 n.23, 675 A.2d 866 (1996). Our practice requires an appellant to raise claims of error in his original brief, “so that the issue as framed by him can be fully responded to by the appellee in its brief, and so that we can have the full benefit of that written argument. Although the function of the appellant’s reply brief is to respond to the arguments and authority presented in the appellee’s brief, that function does not include raising an entirely new claim of error.” (Internal quotation marks omitted.) Commissioner of Health Services v. Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d 958 (1991); Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593-94 n.26, 657 A.2d 212 (1995); see Practice Book §§ 4064 and 4064C. In the criminal context, as well, “[t]he reply brief is not the proper vehicle in which to provide this court with the basis for our review under an Evans-Golding analysis.” State v. Jones, 34 Conn. App. 807, 815, 644 A.2d 355, cert. denied, 231 Conn. 909, 648 A.2d 158 (1994); State v. Wideman, 36 Conn. App. 190, 205, 650 A.2d 571 (1994), cert. denied, 232 Conn. 903, 653 A.2d 192 (1995).

Although exceptional circumstances may persuade us to suspend the requirements of §§ 4064 and 4064C to consider an issue raised for the first time in reply; Curry v. Burns, 225 Conn. 782, 789 n.2, 626 A.2d 719 (1993); State v. McIver, 201 Conn. 559, 563, 518 A.2d 1368 (1986); in this case, we decline to do so because, as a substantive matter, there is no factual support for the claim that is belatedly asserted. The record demonstrates that the defendant failed to assert the claim of lack of notice at every procedural juncture and, in his briefs in the Appellate Court and in this court, acknowledged having received such notice. The record is therefore persuasive that the defendant in fact harbored no misunderstanding about the terms of the original plea agreement. With notice of the terms of the agreement, the defendant entered his plea knowingly and in compliance with the requirements of due process and fundamental fairness.

B

The defendant further contends that the plea agreement violated his right to due process because, if he did not have the right to withdraw his pleas after he failed to appear for sentencing, the plea agreement constituted an illusory contract. “When a guilty plea is induced by promises arising out of a plea bargaining agreement, fairness requires that such promises be fulfilled by the state. . . . The same concept of fairness ordinarily impels the court, in its discretion, either to accord specific performance of the agreement or to permit the opportunity to withdraw the guilty plea.” (Internal quotation marks omitted.) State v. Niblack, 220 Conn. 270, 283, 596 A.2d 407 (1991); State v. Littlejohn, 199 Conn. 631, 644, 508 A.2d 1376 (1986); see Santobello v. New York, 404 U.S. 257, 261-62, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). We disagree with the defendant’s contention that the trial court, in this case, failed “to accord specific, performance of the agreement.”

The validity of plea bargains depends on contract principles. See, e.g., Medley v. Commissioner of Correction, 235 Conn. 413, 667 A.2d 549 (1995). Under the terms of the defendant’s plea agreement, in return for his guilty pleas, he received consideration in the form of the agreed upon sentence. One of the conditions of the agreement, however, was that the defendant appear for sentencing. Fulfillment of this condition was within the defendant’s control. He understood at the outset that, if he failed to satisfy this condition, he nonetheless would be bound to the agreement. By holding the defendant to his guilty pleas, while imposing sentences reflecting his failure to appear, the trial court did no more than enforce the terms of the plea agreement. Accordingly, the defendant’s plea bargain did not violate due process, and his claim fails to meet the third prong of the Evans-Golding analysis.

The judgment of the Appellate Court is affirmed.

In this opinion BORDEN, NORCOTT and KATZ, Js., concurred.

MCDONALD, J.,

concurring and dissenting. I concur in part I of the majority opinion. I dissent, however, as to part II. The majority concludes that the defendant must be saddled with his plea of guilty and receive a greater sentence than that for which he bargained because he failed to appear for sentencing. The majority thereby ignores the essential nature of a plea bargain, which is to exchange a guilty plea for an agreed upon sentence.

It is apparent from the rules of practice that the sentence specified in the plea agreement is the essential quid pro quo for the defendant’s giving up his right to a trial and all of his constitutional protections. The rules of practice also explicitly provide that the judge must allow the defendant to withdraw his plea if the sentence to be imposed is to exceed that specified in the plea agreement. See Practice Book § 721 (3). Practice Book § 698 further provides that if the judge rejects the plea agreement, he shall inform the parties, advise the defendant personally in open court that the court is not bound by the plea agreement and then afford the defendant the opportunity to withdraw his plea.

In this case, when the defendant attempted to withdraw his plea, the trial court denied the motion, stating that the defendant was advised at the time of his plea that the court would not be bound by the agreed sentence if the defendant failed to appear for sentencing. At the time of his plea, however, the trial court had made the following statement to the defendant: “Now, if I give you more than fifteen [years] after eight and three probation, you can take your plea back. Understand that? ... As long as I give you that sentence you can’t take your plea back by saying I violated the plea agreement. You understand that?” The defendant replied, “Yes, sir.”

Given the explicit language of the rules of practice upon which it could be expected defense counsel would rely, and the court’s less than explicit language, I cannot find that the defendant knowingly, intelligently and voluntarily entered into a plea bargain under which he could receive a maximum sentence should he fail to appear. As the majority concedes, at the time of the plea, the defendant was not informed in so many words that, should he fail to appear for sentencing, he could not withdraw his plea. In the record, I fail to find any such words. The defendant, on this record, was told only that the court would not be bound to the plea bargain sentence if he failed to appear.

Furthermore, if conditions to plea bargains, such as the court finds here, are to attach, in fairness they should be spelled out explicitly in language clear enough for the defendant, who after all is the party to the agreement, to understand. The record here reveals a defendant who has a high school diploma, yet the majority expects him to read into the judge’s remarks that his plea was carved in stone should he fail to appear.

Although the defendant moved to withdraw his plea on the ground that he was under the influence of drugs, the court made it clear when it denied the motion that it recognized why the motion was made. The court stated: “If it’s simply his word to say that he was under the influence, I know why he’s saying that, because he was facing fifteen after eight as part of a plea agreement and now he’s facing forty years. So, he’s here to do whatever he can to have his plea withdrawn because he’s concerned I may give him close to forty years in prison.” In these circumstances, I would find the defendant moved to withdraw his plea because he was faced with a maximum sentence of forty years rather than the agreed on sentence of fifteen years suspended after eight year’s.

Moreover, § 698 explicitly requires the trial court to afford the defendant an opportunity to withdraw his plea if the court rejects the plea agreement. See State v. Reid, 204 Conn. 52, 59, 525 A.2d 528 (1987); Miller v. Commissioner of Correction, 29 Conn. App. 773, 781, 617 A.2d 933 (1992). The court failed to follow this mandate and, in fact, denied the defendant’s motion to withdraw his plea

This decision fails to consider the realities of plea bargaining, the reasonable expectations of the parties, and the fairness that should be the hallmark of any system of justice.

Accordingly, I dissent.

       General Statutes § 53a-172 provides in relevant part: “(a) A person is guilty of failure to appear in the first degree when, while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear. . . .”

       General Statutes § 53a-48 (a) provides: “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 § 53a-134 (a) provides in relevant part: “A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom, he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a weapon from which a shot could be discharged. . .

       General Statutes (Rev. to 1993) § 53a-71 (a) provides in relevant part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and such other person is (1) under sixteen years of age . . . .”

       General Statutes (Rev. to 1993) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

        State v. Garvin, 239 Conn. 950, 950-51, 686 A.2d 126 (1996). We granted certification limited to the following issues:
      “1. Did the Appellate Court properly determine that the defendant’s conviction for two counts of failure to appear arising from a single act did not violate the constitutional prohibition against double jeopardy?
      “2. Did the Appellate Court properly determine that the defendant’s due process rights were not violated by the enforcement of an illusory plea agreement with the sentencing court?”

         North Carolina v. Alford, 400 U.S. 25, 26, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) (accused may consent voluntarily, knowingly and understandingly to imposition of prison sentence even while refusing to admit participation in crime).

       The following colloquy ensued between the court and the defendant:
      “The Court: I’ve indicated a sentence of fifteen years, suspended after eight years followed by probation for three years, you understand that?
      “Mr. Garvin: Yes, sir.
      “The Court: Anybody promise you anything else to cause you to plead guüty?
      “Mr. Garvin: No, sir.
      “The Court: I’m going to sentence you on January 6. Understand that?
      “Mr. Garvin: Yes, sir.
      “The Court: Now, if I give you more than fifteen after eight and three probation, you can take your plea back. Understand that?
      “The Court: As long as I give you that sentence you can’t take your plea back by saying I violate the plea agreement. You understand that?
      “Mr. Garvin: Yes, sir.
      “The Court: Now if you don’t show up on January 6, I’m going to order a rearrest, and they are going to come and they wiE find you, and they’E arrest you. Now you are charged with failure to appear, you could get five years and/or five thousand doEars on that. You understand that?
      “Mr. Garvin: Yes, sir.
      “The Court: But, I’m not going to be bound by the plea agreement of fifteen years suspended after eight years and three years of probation. You understand that?
      “Mr. Garvin: Yes, sir.

        “The Court: If you don’t show up, when they catch you, I could give you anywhere from nine months to forty years on the robbery, risk of injury, and the sexual assault second degree, plus you have the failure to appear to worry about. You understand that?
      “Mr. Garvin: Yes, sir.
      “The Court: Any misunderstanding about that?
      “Mr. Garvin: No, sir.”

       Immediately before ordering the defendant’s bonds forfeited, the trial court stated: “[Wjhen I took the plea on Mr. Garvin, I did indicate in open court, Mr. Garvin agreed, if he did not show up today, I would not be bound by the fifteen after eight and three probation, I could do what I feel would be fair and appropriate and reasonable in sentencing Mr. Garvin. He could not come into court and say, T accepted the plea agreement,’ and ask to withdraw his pleas; and also, he would be facing a failure to appear if he was not here.”

       The defendant does not challenge the propriety of the trial court’s decision on this motion.

       In the Appellate Court the defendant also raised, unsuccessfully, a third issue, with respect to which this court did not grant certification.

       Courts in other jurisdictions, to the extent that they have addressed this issue, in the main agree with our conclusion. Two courts have held directly that a defendant may be convicted once for each bail bond forfeited by failure to appear. People v. Albarran, 40 Ill App. 3d 344, 346-47, 352 N.E.2d 379 (1976); State v. Richter, 189 Wis. 2d 105, 110, 525 N.W.2d 168 (1994). One court has held, in the case of a defendant posting only a single, aggregate bond for multiple charges, that he could be convicted of only one failure to appear. McGee v. State, 438 So. 2d 127, 129 (Fla. App. 1983). Only one state court has decided, in a case with multiple bail bonds at issue, that the unit of prosecution under that state’s statute is the act of nonappearance, rather than the number of bonds forfeited. Bristow v. State, 905 P.2d 815, 816-17 (Okla. 1995).

       House Bill No. 2367, “An Act Amending Section 53-154 of the General Statutes Regarding Failure to Appear According to Bail Bond or Own Recognizance,” was incorporated into House Bill No. 3996, “An Act Concerning Bail Procedures for Arrested Persons,” and was ultimately enacted as Public Act No. 549, § 7, of the 1967 Public Acts.

       General Statutes § 21a-279 (formerly § 19-481) provides in relevant part: “(a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a fust 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, or be both fined and imprisoned. . . .”

       See footnote 8 of this opinion.

       In his brief to the Appellate Court, the defendant contended that his “due process rights were violated by a contract which absolved the court from its promise to impose a certain penalty upon the defendant but left the defendant bound by his agreement to plead guilty.”

       In his main brief to this court, the defendant conceded that, “[n]owhere in the plea canvass does the sentencing court inform the defendant that this conduct, his failure to appear for sentencing at the schedule[d] time, would also permit the defendant to withdraw his guilty pleas. T o the contrary, it is clear that the court informed the defendant that should it determine that a sentence in excess of eight years was required, the defendant would be free to ‘take’ the ‘plea back’, except if he failed to appear for sentencing in which case the court would be free to impose a sentence greater than the eight years agreed upon but the defendant would remain bound by his guilty plea . . . .” (Emphasis in original.)

       In his reply brief, the defendant argues that in the original plea agreement, the court did not state “that the defendant would be unable to withdraw his plea and would have to accept a sentence of up to forty years if this occurred.” The reply brief goes on to assert that, “[o]n the state of this record, the defendant could well have assumed that he would be free to withdraw his plea should the sentencing judge elect to abrogate the agreement upon his failure to appear for sentencing.” (Emphasis added.) Even here, the defendant does not represent that he did, in fact, so assume.

       Because we conclude that the trial court enforced the terms of the plea agreement, we disagree with the defendant’s contention that Practice Book § 721 (3) (d) required the court to allow the defendant to withdraw his plea upon imposition of the greater sentence. Section 721 (3) (d) is addressed to a situation in which the trial court fails to adhere to the terms of the plea agreement. See also Practice Book § 698 (“[i]f the judicial authority rejects the plea agreement,” defendant must be afforded right to withdraw plea [emphasis added]).

       Practice Book § 696 provides: “If the judicial authority accepts the plea agreement, he or she shall embody in the judgment and the sentence the disposition provided for in the plea agreement or another disposition more favorable to the defendant than that provided for in the plea agreement.”

       Practice Book § 721 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the court had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;

      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.” (Emphasis added.)

       Practice Book § 698 provides: “If the judicial authority rejects the plea agreement, he or she shall inform the parties of this fact; advise the defendant personally in open court or, on a showing of good cause, in camera that the court is not bound by the plea agreement; afford the defendant the opportunity then to withdraw the plea, if given; and advise the defendant that if he or she persists in a guilty plea or plea of nolo contendere, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.”


author: CALLAHAN, C. J.

text:
    STATE OF CONNECTICUT v. DARRYL MCINTYRE
    (SC 15352)
    Callahan, C. J., and Borden, Katz, Palmer and McDonald, Js.
    Argued June 4
    officially released August 5, 1997

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

      Mary H. Lesser, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Michael A. Pepper, assistant state’s attorney, for the appellee (state).
   Opinion

CALLAHAN, C. J.

The defendant, Darryl McIntyre, was convicted of murder, conspiracy to commit murder and carrying a pistol without a permit. On appeal, the defendant claims that: (1) he was deprived of due process of law by the state’s failure to disclose certain exculpatory evidence prior to his probable cause hearing, even though the evidence was subsequently made available to him during trial; (2) the trial court improperly admitted certain out-of-court statements into evidence at trial; (3) the trial court abused its discretion when it precluded the testimony of certain alibi witnesses; and (4) there was insufficient evidence to sustain the defendant’s conviction for carrying a pistol without a permit in violation of General Statutes § 29-35. The state concedes the insufficiency of the evidence as to the last issue, and, accordingly, we reverse the judgment of conviction on that count. We reject the defendant’s other claims, however, and affirm the judgments of conviction of murder and conspiracy to commit murder.

The following facts, which reasonably could have been found by the jury, are relevant to this appeal. On April 27,1993, at approximately 9 p.m., the victim, Ticey Brown, was shot by three assailants in the vicinity of 75 County Street in New Haven. He sustained two fatal gunshot wounds from two different guns. Fifteen minutes prior to the shooting, a witness, Antonio West, saw three men, whom he identified as Willie Harris, Bobby Jones and the defendant, heading in the direction of 75 County Street. West last saw the three when they entered a parking lot adjacent to the rear of the building at 75 County Street. West was acquainted with all three men and exchanged a greeting with Harris. At the time West observed the three men, the defendant and Jones were putting on masks. Harris was wearing a hat. A second witness, Priscilla Harris, saw three men running in different directions approximately a block away from the scene just after the shooting. She identified one of them as Harris. Other witnesses corroborated the presence in the area of three men whose height and clothing generally matched the descriptions of height and clothing given by West.

In addition to West, a key state’s witness against the defendant was Jeffrey Covington. On July 15, 1993, Covington, a repeat felony offender, was awaiting trial on drug charges at the New Haven correctional center. On that day, Covington watched a television broadcast of Connecticut’s “Most Wanted” with the defendant, who was also being held at the New Haven correctional facility. The subjects of the program were Harris and Jones, who were still at large. After the broadcast, the defendant said to Covington, “They are looking for (Harris and Jones) for that, what happened on County Street. . . . They didn’t do it, I did.” At the conclusion of the trial the jury returned a verdict of guilty, and the court sentenced the defendant to a total effective sentence of sixty-five years. This appeal followed.

I

The defendant first claims that the state’s failure to reveal exculpatory evidence prior to his probable cause hearing vitiates the finding of probable cause, and consequently, that a new probable cause hearing is required to protect his right to due process of law. Specifically, the defendant argues that the state was obligated to disclose an alleged agreement between the state and Covington, regarding the pending dismissal of criminal charges against Covington, prior to Covington’s testifying at the probable cause hearing.

The following additional facts are relevant to this claim. On August 2, 1993, after consulting with his attorney, Covington spoke to the police and the state’s attorney concerning the defendant’s confession to him. The next day, the state proceeded with the probable cause hearing against the defendant, presenting the testimony of West and Covington. At the hearing, the defendant and the court were aware of Covington’s extensive criminal record and that he currently was incarcerated on pending drug charges. They were also aware that Covington knew that he was not eligible for release on bond because of a parole violation. In an effort to impeach Covington, the defendant strenuously argued that Covington had fabricated the defendant’s alleged confession and that Covington’s sole motive for coming forward was to receive a “deal” from the state in his own case. Covington denied the existence of any deal with the state prior to his testimony at the probable cause hearing, although he did admit that he hoped to receive consideration for his testimony. The court acknowledged that Covington’s credibility was weak, but found it sufficient, when coupled with West’s testimony, to support a finding of probable cause.

One week after Covington’s testimony, despite the fact that the state had a strong case against him, the charges pending against him were dismissed. The state did not notify the defendant prior to the date of the probable cause hearing that the charges pending against Covington were to be dropped. The fact that the charges were dropped, however, was disclosed to the defendant during trial, and the defendant used this disclosure in his efforts to impeach Covington.

An agreement between the state and a key witness to dismiss pending charges against the witness falls within the definition of exculpatory evidence contained in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). “It is well established that [i]mpeachment evidence as well as exculpatory evidence falls within Brady’s definition of evidence favorable to an accused.” (Internal quotation marks omitted.) State v. McPhail, 213 Conn. 161, 167, 567 A.2d 812 (1989); see also State v. White, 229 Conn. 125, 135, 640 A.2d 572 (1994). It is similarly well established that because “the adversarial probable cause hearing . . . is an essential part of a defendant’s criminal prosecution, the constitutional obligation to disclose exculpatory material attaches at that time.” (Internal quotation marks omitted.) State v. McPhail, supra, 166.

To prevail on a Brady claim, the defendant bears a “heavy” burden to establish: “(1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that it was material.” State v. Milner, 206 Conn. 512, 539, 539 A.2d 80 (1988). The test of materiality of nondisclosed exculpatory evidence requires that there be a “reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks omitted.) State v. Shannon, 212 Conn. 387, 407, 563 A.2d 646, cert. denied, 493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). We recently held that where there is no reasonable probability that disclosure of the exculpatory evidence would have affected the outcome, there is no constitutional violation under Brady. State v. Gant, 231 Conn. 43, 53, 646 A.2d 835 (1994), cert. denied, 514 U.S. 1038, 115 S. Ct. 1404, 131 L. Ed. 2d 291 (1995). The defendant cannot meet his burden of showing the materiality of the state’s nondisclosure.

Even if we were to assume that there had been an arrangement between the state and Covington prior to the probable cause hearing, there is no reasonable probability that the result of the probable cause hearing would have been different had the arrangement been disclosed. At the probable cause hearing, the defendant forcefully argued to the court that Covington had fabricated his testimony in the hope of improving his own standing with the state’s attorney’s office. Covington himself admitted that he hoped to receive consideration in exchange for his testimony. Moreover, the court that conducted the probable cause hearing expressly noted that Covington’s testimony was “questionable.” It is not reasonably probable that any disclosure of an actual, preexisting arrangement between the state and Covington would have increased the court’s perception of Covington’s lack of credibility. Because the evidence would not have altered the result, confidence in the outcome of the probable cause hearing is not undermined. Therefore, a new probable cause hearing is not required.

Even if we were to conclude that there was a Brady violation, the error would be rendered harmless by the defendant’s subsequent conviction after a full and fair trial. See State v. McPhail, supra, 213 Conn. 161. We concluded in McPhail that the state’s failure to disclose material, exculpatory evidence does not vitiate the finding of probable cause if the defendant subsequently receives a fair trial. Id., 170. “[WJhere, as here, there has been a failure to disclose exculpatory evidence at a criminal defendant’s probable cause hearing, the proper inquiry is . . . whether the nondisclosure did in fact taint the defendant’s subsequent prosecution.” Id. The present case is indistinguishable in any material way from McPhail. The defendant concedes that we cannot reverse his conviction on this ground without overruling McPhail. We decline to do so.

II

The defendant next claims that the trial court improperly allowed the state to introduce into evidence: (1) the interlocking alibi statements of the defendant’s coconspirators; (2) a statement by one coconspirator regarding an incident occurring at a time one week or more prior to the incident in question; and (3) a statement by an unidentified man that no woman named “Robyn” lived at the address at which Harris claimed to have dropped the defendant for the purpose of seeing “Robyn.” We conclude that the interlocking alibis were admissible under State v. Esposito, 223 Conn. 299, 613 A.2d 242 (1992). The admission of the other two statements, although improper, was harmless.

A

At trial, the court allowed Detective Hilton Wright to testify concerning statements made to him by coconspirators Jones and Harris, neither of whom testified at the defendant’s trial. The statements concerned their alibis for the night in question in which Jones, Harris and the defendant claimed to have been playing basketball at the time of the murder. All three gave substantially the same story, but with some variations in the details. The trial court admitted the statements under Esposito to prove false interlocking alibis and instructed the jury that the statements were not to be considered for their truth.

In Esposito, we held that statements introduced to show the existence of false interlocking alibis are not hearsay because they are not admitted for their truth. State v. Esposito, supra, 223 Conn. 316-17; see also State v. Miller, 154 Conn. 622, 629, 228 A.2d 136 (1967). The alibi statements of Jones and Harris fall squarely within the rule of Esposito and, therefore, are not hearsay.

Although we hold that the statements are not hearsay, they are not automatically admissible. To be admissible, the statements “must also be relevant, both in the sense that [they] must relate to a material issue in the case and that [they] must have a logical tendency to aid the trier in the determination of a material issue.” Id., 315. A material issue in the case was whether the defendant conspired with Jones and Harris to kill Ticey Brown. Evidence that tended to show that all three had substantially the same alibi for the night in question was certainly related to that material issue because it had a logical tendency to assist the trier in determining whether the three conspired to murder Brown and then to conceal their participation in the crime. See id., 316. Accordingly, the trial court properly admitted the interlocking alibi statements.

B

In addition to Wright’s testimony regarding statements made to him by Jones and Harris regarding their activities on the night in question, the trial court admitted two other statements made to Wright under the authority of Esposito. The first statement described an incident that had occurred approximately one week prior to the murder. According to Wright, Harris had stated that, at that time, he and the defendant had assaulted Effrain Gilliard and that during the assault, the defendant had a gun similar to the one that might have been used to murder Brown. The state proffered this evidence, not for its truth, but to show that the defendant and Harris had given varied accounts of the incident, and to show the relationship between the parties.

The other statement at issue is the statement of an unidentified party to Wright. During his alibi statement, Harris had indicated that he and Jones had dropped the defendant off at the home of a woman named Robyn on DeWitt Street. Wright went to that address and there spoke with a man who stated to him that no one named Robyn lived at that address. Wright testified to this statement by the unidentified party allegedly for the purpose of showing his own investigative activity. The trial court allowed the testimony, again citing Esposito. The jury was instructed that neither of the statements was to be considered for its truth.

These two statements were not properly admissible under the rationale of Esposito. They are too far removed from the statements regarding alibi to fit within its rationale. The fact that Harris made a statement regarding the Gilliard incident may have been relevant to show the existence of a relationship between the parties and a motive to fabricate, but it must have been offered for its truth if it were to accomplish that purpose. Esposito is based on the premise that the truth of the alibi statement is immaterial. Furthermore, to be used for the purpose of showing the falsity of the alibi statements, the statement must relate to the alibi. There is nothing in the record to indicate that the assault on Gilliard was related to the conspiracy to commit the murder or to establish false alibis.

Similarly, the statement of the unidentified party regarding Robyn is irrelevant to the interlocking alibi apart from its truth. The statement was ostensibly offered to prove what action Wright took in his investigation. Offered for such a purpose, the statement was irrelevant. Therefore, depending on the purpose for which these statements were offered, they were either irrelevant or inadmissible hearsay. Accordingly, the trial court improperly admitted both the statement regarding the Gilliard incident and the statement regarding Robyn. We conclude, however, that the admission of the statements was harmless.

The admission of the statements in question does not rise to the level of a constitutional violation. Not every evidentiary error is a constitutional error, and merely placing a “constitutional tag on a nonconstitutional claim” does not make it so. State v. Vitale, 197 Conn. 396, 403, 497 A.2d 956 (1985). This court has held that admission of statements that are either irrelevant or impermissible hearsay is not a constitutional error. See State v. Robinson, 213 Conn. 243, 257, 567 A.2d 1173 (1989). Under the current and long-standing state of the law in Connecticut, the burden to prove the harmfulness of an improper evidentiary ruling is borne by the defendant. “The defendant must show that it is more probable than not that the erroneous action of the court affected the result.” (Internal quotation marks omitted.) State v. Cavell, 235 Conn. 711, 721-22, 670 A.2d 261 (1996). The defendant cannot meet his burden of demonstrating harmfulness.

First, the defendant cannot show harm stemming from the hearsay statement regarding the assault on Gilliard wherein a gun was mentioned because this testimony was cumulative. The same evidence was presented previously in the trial when Gilliard himself testified to the assault. Moreover, any potential prejudice arising from the jury’s possible consideration of the statement for its truth was nominal. The assault on Gilliard occurred at least one week before the murder and the record is unclear as to the type of weapon involved in either incident. It also is uncertain whether the gun involved belonged to the defendant or Gilliard. There were before the jury at least two other versions of the incident regarding the gun. Both the defendant’s version of the incident and that of Gilliard were properly received in evidence. The defendant has failed to demonstrate probable harm resulting from another version.

Second, the admission of the statement regarding Robyn, was also harmless. The danger of the statement was its tendency to prove the falsity of the defendant’s alibi if the statement was considered for its truth. The court advised the jury, however, that it should not consider the statements relayed by Wright for their truth, including the statement concerning Robyn. The jury is presumed to follow the court’s instructions unless there is a “fair indication to the contrary.” State v. Jennings, 216 Conn. 647, 664, 583 A.2d 915 (1990). Moreover, the state presented significant evidence of the falsity of the defendant’s alibi. Covington’s testimony regarding the defendant’s confession and the accounts of witnesses who saw the three coconspirators on the night in question in the vicinity of the murder scene tended to show its untruth. Wright’s hearsay statement regarding Robyn added little to the already substantial evidence presented against the defendant. The defendant did not, therefore, meet his burden of demonstrating harm. See State v. Cavell, supra, 235 Conn. 721, and cases cited therein.

Ill

The defendant next claims that the trial court improperly precluded him from presenting two alibi witnesses. A trial court’s authority to preclude alibi witnesses for failure to comply with the discoveiy rules does not violate the defendant’s constitutional rights. State v. Boucino, 199 Conn. 207, 213-14, 506 A.2d 125 (1986) (preclusion of alibi witnesses is not per se violation of defendant’s right to compulsory process). The decision to preclude alibi witnesses is left to the sound discretion of the trial court. Id., 214. We will review the trial court’s decision only for an abuse of that discretion. Id.

The trial court exercised its discretion to exclude the alibi witnesses on the basis of the following facts. On the eve of trial, one day before jury selection was to begin, the defendant submitted an untimely and procedurally insufficient notice of alibi. Practice Book § 763 requires that the notice contain the names and addresses of witnesses upon whom the defendant intends to rely, as well as a statement of the specific place where the defendant claims to have been at the time in question. In violation of § 763, the notice stated the location where the defendant claimed to have been as “a basketball court in the area of James Street and Chapel Street,” and it contained only the names of two witnesses without adequate addresses, stating simply that they were from “New Haven.” Moreover, notice was given more than two years after the date on which the state made its demand for notice of alibi.

The trial court granted the state’s motion to preclude the alibi witnesses on the basis of the defendant’s failure to comply -with § 763. The court denied the defendant’s immediate request for an opportunity to perfect and refile the notice because jury selection was set to begin the next day. The state asserts, however, that the defendant subsequently was afforded an opportunity to file a perfected notice of alibi for reconsideration.

The state bases its assertion on a discussion that occurred in chambers on August 4, 1995. Upon order of this court, granting the state’s motion for articulation, the trial court, Damiani, J., stated its recollection of the chambers discussion. Judge Damiani recalled indicating, on August 4, 1995, that the defendant could perfect and refile his notice of alibi before August 7, 1995, and that the court would reconsider its ruling precluding the presentation of the alibi witnesses. He did not indicate at that time what his ruling would be, only that he would reconsider a perfected notice. This is also what the defense attorney recalls took place at the chambers conference. At a minimum, then, it is clear that the defendant was advised by the trial court that a perfected notice filed by August 7, 1995, would be reconsidered. The state contends that the defendant waived his right to appeal this issue by reason of his failure to take advantage of the opportunity offered by the trial court to seek reconsideration. We agree.

To rebut the state’s claim of waiver, the defendant urges this court to disregard statements made in chambers and rely only upon the record in which the trial court denied his request for an opportunity to perfect the notice of alibi. He argues that to allow a chambers conference to supersede the court’s ruling from the bench would wreak havoc on the system. The defendant asks us to rule that attorneys are entitled to rely on bench rulings and should be bound only by statements made in chambers if they are expressly placed on the record. We agree with the defendant that the substance of chambers conferences that are not reflected in the record cannot displace rulings made on the record. That rule does not, however, help the defendant in this case.

When a trial court modifies or changes its prior ruling during a chambers conference, it can and should make a notation of that change for the record at the first available opportunity. Failing that, however, where the trial court subsequently clarifies the record by articulating the substance of the chambers discussion, as the court did here, such a record is sufficient to serve as a basis for appellate review.

A criminal defendant cannot forgo opportunities granted to him to cure his procedural lapses, and then raise the procedural issue on appeal. “It is axiomatic that our system of law encourages the conservation of judicial time and resources.” State v. Arena, 235 Conn. 67, 80, 663 A.2d 972 (1995). We have repeatedly and recently held that a defendant who fails to take advantage of curative options presented by the trial court to remedy possible prejudice waives his right subsequently to claim prejudice. See, e.g., id., 81.

The defendant further argues that he should not be bound in this case by the court’s offer to reconsider its ruling because in making the offer, the court did not clearly indicate that it would, in fact, allow the alibi evidence once a perfected notice was filed. Merely because the court did not include an assurance of the outcome in its offer to reconsider is insufficient reason to claim now that the defendant was not afforded an opportunity to perfect and refile his notice. It is not for this court to “speculate on the possible effect of the curative actions that the defendant rejected.” Id. It is sufficient that the curative option afforded by the court constitutes an adequate remedy to cure the alleged prejudice. Id. The remedy of reconsideration offered by the court could have cured any prejudice. If the trial court rejected the perfected notice, the claim of prejudice would then have been preserved for appeal.

We conclude that the defendant’s failure to take advantage of the opportunity to perfect his notice and file for reconsideration constituted a waiver of his right to raise this issue on appeal.

IV

Finally, the defendant claims that his conviction for carrying a pistol without a permit was not based on sufficient evidence. General Statutes § 29-27 defines a pistol as “any firearm having a barrel less than twelve inches in length.” A necessary element of the crime of carrying a pistol without a permit, therefore, requires some evidence of the length of the barrel. State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977); see also State v. Sharpe, 195 Conn. 651, 667, 491 A.2d 345 (1985). Because no weapon was ever recovered or introduced, and no testimony presented from which the length of the barrel could be inferred, there is no evidence of an essential element of the crime. The state concedes the insufficiency of the evidence and agrees that this conviction must be reversed.

The judgments of conviction of murder and conspiracy to commit murder are affirmed; the judgment of conviction of carrying a pistol without a permit is reversed, and the case is remanded with direction to render a judgment of acquittal on that count.

In this opinion the other justices concurred.

       General Statutes § 29-35 provides: “Carrying of pistol or revolver without permit prohibited. Exceptions, (a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to carry any firearm issued by the authority of any other state or subdivision of the United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.
      “(b) The holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver.”

       One wound was caused by a .44 caliber special bullet, the other by a .40 caliber bullet from a semiautomatic weapon. Both bullets were recovered from the victim’s body. These wounds could not have been produced by the same weapon, and either wound by itself would have been fatal.

       The defendant appealed pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years . . . .”

       We note at the outset that there is no evidence in the record of the existence of any agreement between the state and Covington prior to his testimony on the date of the probable cause hearing. Indeed, the only evidence in the record is Covington’s denial of the existence of any agreement. Although the fact that the charges against Covington were dropped one week after Covington testified at the probable cause hearing seems compelling, the defendant presented no other evidence that an arrangement actually existed at the time of the probable cause hearing. For purposes of analyzing this claim, however, we will assume both the existence of an arrangement prior to the probable cause hearing and the state’s failure to disclose the arrangement.

       The state asserts that this issue was not preserved for appeal because the defendant stated that he would defer to the court’s ruling as to the statements directly related to the night in question. Although the state does not direct us to any such statement in the voluminous transcript, we believe it refers to a statement by the defense attorney relating to a different objection. Our review of the record does not support such a waiver.
      When the trial judge made his ruling on the admission of those statements, the defendant properly objected, preserving his right to appeal. The next day, when other statements were at issue, the attorney stated that he deferred to the prior ruling, but not the current ruling. The defendant asserts that he was not waiving his prior objection, merely acknowledging that the court had already decided the issue of the interlocking alibi and that he was not returning to that issue. Because we ultimately conclude that the interlocking alibis were properly introduced into evidence in any event, we will treat the defendant’s claim as having been preserved.

       The defendant acknowledged in oral argument and in Ms brief that Esposito controls in tMs case with respect to the interlocking alibi statements. He asks that we “discard” the precedent established in Esposito and reverse Ms conviction. We decline to do so.

       The defendant also asks us to conclude that the alibi statements, although facially exculpatory, were "mferentially inculpatory” because they were used to allow the trier to draw inferences of his guilt. As such, he claims a violation of his constitutional right to confront witnesses under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). That argument was rejected in Esposito and is without merit. State v. Esposito, supra, 223 Conn. 315.

       No murder weapon was ever recovered. One of the victim’s wounds was caused by a .40 caliber semiautomatic weapon. Two .40 caliber Smith and Wesson shell casings were found in the area. They could have been fired from a Glock .40 or a Smith and Wesson. Wright testified that during the assault on Gilliard, the defendant was in possession of a gun. It was not clear from the testimony whether the weapon belonged to the defendant or whether he took it from Gilliard. There was also conflicting testimony as to whether the gun was held by the defendant or by Harris during the assault on Gilliard.

       The defendant urges us to modify the current rule by placing the burden on the beneficiary of the error. Connecticut has a long history of placing the burden on t he defendant to prove harm when raising a claim of nonconstitutional error. See, e.g., State v. Artieri, 206 Conn. 81, 88, 536 A.2d 567 (1988); State v. Ruth, 181 Conn. 187, 196-97, 435 A.2d 3 (1980); State v. L’Heureur, 166 Conn. 312, 323-24, 348 A.2d 578 (1974); State v. Vennard, 159 Conn. 385, 393, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S. Ct. 576, 27 L. Ed. 2d 625 (1971), overruled in part on other grounds, State v. Ferrell, 191 Conn. 37, 43, 463 A.2d 573 (1983); State v. DeMurtin, 153 Conn. 708, 710, 216 A.2d 204 (1965). We are not persuaded that we should alter that course.

       Practice Book § 763 provides: “--Notice by Defendant
      “Upon written demand filed by the prosecuting authority stating the time, date, and place at which the alleged offense was committed, the defendant shall file within twenty days, or at such other time as the judicial authority may direct, a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi.”

       The murder at issue occurred on April 27,1993. The state made a demand for notice of alibi on June 25,1993. The defendant filed an inadequate notice of alibi on July 21, 1995. The hearing on the state’s motion to preclude the alibi witnesses was held, and the motion was granted, on the next court date, July 24, 1995.

       The presentation of evidence was set to begin on that date.


author: BORDEN, J.

text:
    JOHN F. TROST v. CONSERVATION COMMISSION OF THE TOWN OF NEW FAIRFIELD
    (SC 15630)
    Callahan, C. J., and Borden, Berdon, Norcott and Katz, Js.
    Argued April 25
    officially released August 5, 1997

      Patricia A. Horgan, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (defendant commissioner of environmental protection).

      Gail E. McTaggart, for the appellee (named defendant).
   Opinion

BORDEN, J.

The sole issue raised in this appeal is whether, under the circumstances of this case, the trial court was authorized, pursuant to General Statutes § 22a-43 (c), to approve a proposed settlement of an administrative appeal where one of the parties to the appeal had not consented to the settlement. The defendant commissioner of environmental protection (commissioner) objected to a settlement between the plaintiff, John F. Trost, and the named defendant, the conservation commission of the town of New Fairfield (conservation commission), regarding the conservation commission’s denial of the plaintiff’s wetlands application. The trial court overruled the commissioner’s objection and approved the settlement. The commissioner appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We conclude that before the trial court may approve the settlement of an administrative appeal under § 22a-43 (c), the consent of all the parties is required. Accordingly, we reverse the judgment of the trial couit.

The facts and procedural history relevant to this appeal are undisputed. The commissioner exercises supervision over the Inland Wetlands and Watercourses Act (act), General Statutes §§ 22a-36 through 22a-45. His specific duties are enumerated in General Statutes § 22a-39. Municipalities obtain authority to regulate inland wetlands and watercourses within their boundaries through a delegation from the commissioner. See General Statutes § § 22a-39 and 22a-42. The conservation commission operates as the inland wetlands agency for the town of New Fairfield pursuant to this delegated authority.

In 1995, the plaintiff applied to the conservation commission for a wetlands permit as part of the proposed development of an eight lot subdivision. After a series of public hearings, the conservation commission denied the application. The plaintiff appealed from the denial to the Superior Court and served notice of the appeal on the commissioner as required by § 22a-43 (a). The commissioner filed an appearance and became a party to the appeal pursuant to § 22a-43 (a).

After the filing of the appeal, the plaintiff and the conservation commission entered into settlement negotiations. The plaintiff proposed a settlement that provided that the plaintiffs appeal would be withdrawn, the conservation commission’s decision would be declared void, and any future application by the plaintiff would have to conform to certain procedures. After completing the settlement negotiations, the plaintiff and the conservation commission entered into a stipulation of judgment setting forth the terms of the proposed settlement. The commissioner, however, did not agree with the terms of the proposed settlement and, thus, did not consent to the stipulation.

The plaintiff then filed a motion to withdraw his appeal in accordance with the stipulation for judgment. The commissioner filed an objection to that motion on the ground that the settlement was not “between” all of the parties to the appeal because the commissioner had not consented to the stipulation. Thereafter, the plaintiff filed a revised stipulation, signed only by the plaintiff and the conservation commission.

The trial court heard oral argument from all of the parties, including the commissioner, on the plaintiffs motion to withdraw in accordance with the revised stipulation. The commissioner argued that: (1) the court does not have authority to “void” a decision prior to a full hearing; (2) the stipulation binds the conservation commission as to a future application in violation of the act; and (3) the court cannot approve a settlement in the absence of the consent of all the parties. The trial court overruled the objection of the commissioner, approved the revised stipulation and allowed the withdrawal of the appeal as to the conservation commission. This appeal by the commissioner followed.

The commissioner claims that under Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 60, 594 A.2d 981 (1991), the agreement of all the parties to an appeal is required before the trial court may approve any settlement of that appeal pursuant to § 22a-43 (c). Specifically, the commissioner argues that because he did not agree to the terms of the stipulation, the trial court was not authorized to approve it. We agree.

Section § 22a-43 (c) provides: “No appeal taken under subsection (a) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and said court has approved such proposed withdrawal or settlement.” (Emphasis added.) In Ralto Developers, Inc. v. Environmental Impact Commission, supra, 220 Conn. 56, we were presented with the issue of whether “between the parties” means that the consent of all the parties is required before the court may approve a settlement of an appeal pursuant to § 22a-43 (c). In that case, a developer submitted two applications for a wetlands permit, both of which were denied by the city’s inland wetlands agency. Id. The developer appealed from both denials to the Superior Court, and a neighborhood association intervened in both of the administrative appeals. Id., 56-57. The developer and the agency agreed to a settlement that provided for the withdrawal of the first appeal and the granting of a wetlands permit in the second appeal. Id., 57. The association objected to the terms of the settlement, but the trial court nonetheless rendered judgment approving the settlement. Id. We reversed the judgment of the trial court and held that “between the parties” means that the consent of all the parties to the appeal is a condition precedent to the court’s approval of any settlement of that appeal pursuant to § 22a-43 (c). Id., 60-61.

The conservation commission first argues that Ralto Developers, Inc., is distinguishable because it involved a “settlement” of an appeal, whereas the present case involves only a “withdrawal” of an appeal. The conservation commission argues that, although § 22a-43 (c) requires the consent of all parties before the court may approve the settlement of an appeal, such consent is not required before the court may approve a simple withdrawal of the appeal. Although we agree with the conservation commission that the consent of all the parties is not a condition precedent to court approval of the withdrawal of an appeal, we disagree with its characterization of the revised stipulation in the present case as a simple withdrawal.

The plain language of § 22a-43 (c) distinguishes between withdrawals and settlements. It provides that, although a withdrawal requires only the approval of the trial court following a hearing, a settlement must be “between the parties” and be approved by the trial court following a hearing. A withdrawal of an appeal taken under § 22a-43 (a) is ordinarily just that, a withdrawal. It is an act by the party who instituted the appeal, and is ordinarily accomplished unilaterally by that party in the absence of a statute such as § 22a-43 (c) or some other rule of law limiting the authority to withdraw unilaterally. A settlement of an appeal taken under § 22a-43 (a), however, is an agreement, the terms of which affect the underlying decision, the disposition of the appeal, or both. The fact that a proposed disposition of an appeal includes the withdrawal of the appeal does not necessarily mean that the proposed disposition is a simple withdrawal and not a settlement of the appeal. Further, whether the proposed disposition of an appeal is a withdrawal or a settlement must be determined on a case-by-case basis. That determination presents a question of law on which our scope of review is plenary. See United Components, Inc. v. Wdowiak, 239 Conn. 259, 264, 684 A.2d 693 (1996) (construction of pleadings presents question of law on which appellate review is plenary).

In the present case, a simple withdrawal would have operated to reinstate the conservation commission’s denial of the plaintiffs application for a wetlands permit. The revised stipulation did not operate to reinstate the previous denial, but, instead, provided that the denial was to be rendered void. Furthermore, the revised stipulation outlined detailed procedures for handling any future application by the plaintiff. For example, the revised stipulation provided that the conservation commission would request that the department of environmental protection review any future application by the plaintiff, conduct a site visit and issue a report regarding any wetlands impact posed by the application. In addition, the revised stipulation provided that, in the event the department of environmental protection refused to review the application, the conservation commission would draft a list of experts to be chosen and paid for by the plaintiff. Finally, the revised stipulation provided for certain procedures to be followed by the conservation commission in determining whether it had jurisdiction over a future application by the plaintiff. We conclude that the revised stipulation constituted a settlement of the appeal, and not merely a withdrawal of the appeal, because it affected the underlying decision and altered the procedural rights of the plaintiff and the conservation commission with respect to each other regarding the handling of a future application by the plaintiff.

The conservation commission next argues that even if the revised stipulation constitutes a settlement, the consent of all the parties is not required because the revised stipulation did not modify the underlying decision from which the plaintiff appealed. In support of this argument, the conservation commission points to our conclusion in Ralto Developers, Inc. v. Environmental Impact Commission, supra, 220 Conn. 58, that “§ 22a-43 (c) requires the consent of all parties to an appeal . . . from a decision of an inland wetlands agency when the settlement agreement modifies the decision of that agency.” The conservation commission seeks to distinguish Ralto Developers, Inc., on the ground that it involved a settlement that modified an inland wetlands agency’s decision by providing that the decision would be reversed and a wetlands permit would be granted. The conservation commission contends that the revised stipulation in the present case did not modify its decision to deny the plaintiffs application, but, rather, operated to return the parties to their original positions that existed prior to his application. The conservation commission further contends that because the revised stipulation did not modify the underlying decision, the consent of all the parties was not required. We disagree.

First, even if we were to agree with the conservation commission’s narrow interpretation of Ralto Developers, Inc., we would conclude that the revised stipulation operated to modify the conservation commission’s decision because it provided that the decision would be declared void. We cannot agree that completely voiding the decision did not “modify” it. Second, and more fundamentally, we construe Ralto Developers, Inc., more broadly. In that case, we held that “[s]ection 22a-43 (c) provides that ‘[n]o appeal [from an inland wetlands agency decision] shall be withdrawn and no settlement between the parties to any such appeal shall be effective’ without court approval of ‘such proposed withdrawal or settlement’ after a hearing. . . . The legislative intent is clear that a settlement agreement ‘between the parties’ to the appeal is a condition precedent for approval of any settlement involving withdrawal of the appeal.” (Emphasis in original.) Id., 60-61. Thus, the holding of Ralto Developers, Inc., is broader than the conservation commission claims. Any settlement requires the consent of all the parties before the trial court may approve that settlement pursuant to § 22a-43 (c). The language relied on by the conservation commission derives from the application of that holding to the facts of that case.

Turning to the present case, we conclude that Rallo Developers, Inc., is directly on point. The conservation commission denied the plaintiffs application for a wetlands permit, and the plaintiff filed an administrative appeal with the Superior Court pursuant to § 22a-43 (a). The commissioner intervened in, and became a party to, that appeal. Following settlement negotiations, the plaintiff filed a motion to withdraw his appeal in accordance with the revised stipulation signed only by the plaintiff and the conservation commission. Having already determined that the revised stipulation constituted a settlement of the plaintiffs appeal, we conclude that.the consent of all the parties, including the commissioner, was required pursuant to § 22a-43 (c) before the trial court could approve the revised stipulation. Accordingly, we conclude that the trial court improperly rendered judgment approving the revised stipulation in the absence of the commissioner’s consent.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § 22a-43 (c) provides: “No appeal taken under subsection (a) of this section shall be withdrawn and no settlement between the parties to any such appeal shall be effective unless and until a hearing has been held before the Superior Court and said court has approved such proposed withdrawal or settlement.”

       The plaintiff did not participate in this appeal.

       General Statutes § 22a-43 provides in relevant part: “Appeals, (a) The commissioner or any person aggrieved by any regulation, order, decision or action made pursuant to sections 22a-36 to 22a-45, inclusive, by the commissioner, district or municipality or any person owning or occupying land which abuts any portion of land or is within a radius of ninety feet of the wetland or watercourse involved in any regulation, order, decision or action made pursuant to said sections may, within the time specified in subsection (b) of section 8-8 from the publication of such regulation, order, decision or action, appeal to the superior court for the judicial district where the land affected is located .... Notice of such appeal shall be served upon the inland wetlands agency and the commissioner. The commissioner may appear as a party to any action brought by any other person within thirty days from the date such appeal is returned to the court. The appeal shall state the reasons upon which it is predicated and shall not stay proceedings on the regulation, order, decision or action . . . .”

       The stipulation, dated June 4, 1996, provides as follows:
      “The undersigned, being counsel for the Plaintiff, John F. Trost, and for the Defendant, Conservation Commission of the Town of New Fairfield, hereby stipulate and agree as follows:
      “(1) The decision of the Conservation Commission dated November 22, 1995, will be declared void, without prejudice.
      “(2) The Commission will request that the Department of Environmental Protection of the State of Connecticut (DEP) review any subsequent subdivision plan for the property subject to this appeal. As part of such request, the DEP will be requested to perform a site inspection and to issue a report regarding the existence and nature of wetlands and/or watercourse impacts, if any, under the Inland Wetlands and Watercourses Act which would require the filing of an application for a permit with the [Conservation] Commission. It is understood that the DEP will determine whether or not to accept the referral in its absolute discretion.
      “(3) In the event that the DEP does not agree to review a subsequent subdivision plan, the [Conservation] Commission will prepare a list of three or more wetlands/geology experts. The [plaintiff] shall select one of such experts for referral of the plans for review and report as set forth in paragraph 2 above. The [plaintiff] shall be responsible for the expert’s fees and costs.
      “The [Conservation] Commission will request that the chosen expert prepare a good faith estimate of the fee for his or her services. The [plaintiff] will place the amount of such estimated fee in escrow with the [Conservation] Commission prior to the [Conservation] Commission’s engagement of the expert.

        “(4) Both the [plaintiff] or his representatives and the [Conservation] Commission’s representatives will be invited to be present for site visit of the DEP or the chosen expert.
      “(5) The DEP or the chosen expert will be given copies of the Kingsmark study prepared on behalf of the [Conservation] Commission and the [plaintiffs] agent’s written response to the study prior to the commencement of the review process set forth above.
      “(6) The [Conservation] Commission will make its decision regarding its jurisdiction over the [plaintiffs] subdivision consistent with the report of the DEP or the chosen expert. The [plaintiff] shall be bound by the findings of the DEP or the chosen expert with regard to jurisdiction.”

       The revised stipulation, dated June 17, 1996, contained modifications to paragraphs one, two and six of the original stipulation, which paragraphs provide as follows:
      “(1) The decision of the Conservation Commission dated November 22, 1995, will be declared void, without prejudice and this appeal will be withdrawn.

      “(2) The Commission will request that the Department of Environmental Protection of the State of Connecticut (DEP) review any subsequent subdivision plan filed by the applicant for the property subject to this appeal. As part of such request, the DEP will be requested to perform a site inspection and to issue a report regarding the existence and nature of wetlands and/ or watercourse impacts, if any, under the Inland Wetlands and Watercourses Act which would require the filing of an application for a permit with the [Conservation] Commission. It is understood that the DEP will determine whether or not to accept the referral in its absolute discretion. . . .
      "(6) The [Conservation] Commission will make its decision regarding its jurisdiction over the [plaintiffs] subdivision with due consideration given to the report of the DEP or the chosen expert. The [plaintiff] shall be bound by the determination of the Conservation Commission regarding jurisdiction provided said determination is consistent with the findings of the DEP or the chosen expert.” (Emphasis added.)

       The revised stipulation provided for the withdrawal of the entire appeal. The trial court’s order dated June 17, 1996, provided for the withdrawal of the appeal as to the conservation commission only. In its judgment dated the same day, the court rendered judgment in favor of the plaintiff and the conservation commission, and against the commissioner.
      Despite the conflicts among the revised stipulation, the order and the judgment, we recognize that the trial court intended to approve the stipulation and to allow the withdrawal of the appeal as to the conservation commission.

       In Ralto Developers, Inc. v. Environmental Impact Commission, supra, 220 Conn. 60-61 n.4, we noted that the use of the word “between,” rather than “among,” was not meant to limit its meaning to two, rather than more than two, parties, and that it expressed “the relation of a thing to many surrounding things severally and individually . . . .” (Internal quotation marks omitted.)

       The issue as framed in Ralto Developers, Inc. v. Environmental Impact Commission, supra, 220 Conn. 55-56, can be read to suggest that withdrawals also require agreement of the parties before they may be approved by the trial court. Under the analysis in that case of the statutory language, however, and consistent with the language of the statute, only settlements require the agreement of all the parties to the appeal under § 22a-43 (c) before approval by the court can be granted, because only settlements operate “ ‘between the parties.’ ” Id., 60-61.