text:
    Elinor Halpern v. Board of Education of the City of Bristol
    (11549)
    Peters, C. J., Healey, Shea, Dannehy and Callahan, Js.

      Argued April 10
    decision released July 16, 1985

      Jon L. Schoenhorn, with whom, on the brief, was Joseph Rubin, for the appellant (plaintiff).

      Robert J. Murphy, with whom, on the brief, was Thomas N. Sullivan, for the appellee (defendant).
   Arthur H. Healey, J.

This appeal involves the prior pending action doctrine. The plaintiff, who had been employed by the defendant as a teacher, instituted an administrative appeal under General Statutes § 10-151 (f) from the termination of her employment. While that action was pending, the plaintiff, seeking a writ of mandamus and a declaratory judgment, instituted a second, separate action against the same defendant. The factual allegations in both actions are substantially identical, and the trial court, finding that the “ultimate goals in both cases are not dissimilar,” granted the defendant’s motion to dismiss the later action under the prior pending action rule. The plaintiff appeals. We find no error.

The present appeal arises from our remand in Lee v. Board of Education, 181 Conn. 69, 434 A.2d 333 (1980). The plaintiff was a tenured teacher employed by the defendant, the city of Bristol board of education, which discharged her from that position in 1974. Thereafter, pursuant to the Teacher Tenure Act; see General Statutes § 10-151; the plaintiff appealed from that decision to the Court of Common Pleas, which dismissed the appeal. She then appealed to this court, and in Lee v. Board of Education, supra, we held that “a tenured teacher discharged for cause under General Statutes § 10-151 (b) is entitled, as a matter of constitutional law, to a written statement of the decision reached, the reasons for the determination, and a fair summary of the evidence relied upon.” Id., 79. Because these requirements had not been met, we set aside the trial court’s judgment and the matter was remanded “with direction to return the case to the board for further proceedings consistent with this opinion.” Id., 84.

Thereafter in November, 1980, the defendant board, comprised entirely of members who had not participated in the previous 1974 termination proceeding, “issued ‘findings and conclusions,’ based upon the record” of the plaintiff’s 1974 pretermination hearing, to substantiate the plaintiff’s discharge. On December 4, 1980, the plaintiff appealed those “actions and decision” of the defendant to the Superior Court where that action (the first action) is still pending. See General Statutes § 10-151 (f). While the first action was pending, the plaintiff also initiated this second action which forms the subject of this particular appeal before us. Although the allegations of these two complaints, except for one sentence in each, are identical, the prayers for relief differ somewhat. In the first action, the plaintiff alleged aggrievement and sought a reversal of the defendant’s “final decision,” a declaration “that the action of said Board in attempting to terminate [the] plaintiff’s contract of employment . . . [is] invalid,” and an order “that this matter be remanded to the Board for a determination of the amount of back wages and benefits owed to [the] plaintiff by [the] defendant.” The prayer for relief in the plaintiff’s second action sought both a writ of mandamus and a declaratory judgment to the effect that the plaintiff either be reinstated to her previous position as a tenured teacher or be granted a “new hearing” pursuant to General Statutes § 10-151 “to determine whether [the] plaintiff should be terminated from her position with [the] defendant as of the date of the determination resulting from that new hearing” and that the defendant also must hold a “hearing” for the purpose of determining “the amount of back wages and benefits” owed to the plaintiff by the defendant “for the period of time from her unlawful termination to the date when she is either reinstated or lawfully terminated . . . .”

Alleging lack of subject matter jurisdiction, the defendant filed a motion to dismiss the second action on the ground, inter alia, that it was “virtually identical to the one filed on December 4, 1980.” See Practice Book §§ 142,143,145. The trial court granted the defendant’s motion to dismiss and, in its memorandum of decision, stated: “The parties in both cases are the same and the allegations raised in the appeal and in the instant action are mutual. Beyond this, both matters were filed and are pending in the same jurisdiction and venue. The court is mindful that the remedy sought in the instant matter is dissimilar to that in the earlier case. This is of no significant consequence. The ultimate goals in both cases are not dissimilar.” The plaintiff appeals from this dismissal, but nevertheless concedes in her brief that, if the first appeal “proceeds to a final decision on the merits, this action will be unnecessary.”

“It has long been the rule that when two separate lawsuits are ‘virtually alike’ the second action is amenable to dismissal by the court. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 112, 438 A.2d 834 (1981).” Solomon v. Aberman, 196 Conn. 359, 382, 493 A.2d 193 (1985). The prior pending action doctrine has evolved as a “rule of justice and equity”; Hatch v. Spofford, 22 Conn. 485, 494 (1853); and retains its vitality in this state, in which “joinder of claims and of remedies is permissive rather than mandatory.” (Citations omitted.) Solomon v. Aberman, supra.

We have explicated the prior pending action doctrine as follows: “ ‘ “The pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement. It is so, because there cannot be any reason or necessity for bringing the second, and, therefore, it must be oppressive and vexatious.” This is “a rule of justice and equity, generally applicable, and always, where the two suits are virtually alike, and in the same jurisdiction.” Hatch v. Spofford, [supra, 494]; Cahill v. Cahill, 76 Conn. 542, 547, 57 Atl. 284 [1904].’ Dettenborn v. Hartford-National Bank & Trust Co., 121 Conn. 388, 392, 185 A. 82 (1936); see Zachs v. Public Utilities Commission, 171 Conn. 387, 391-92, 370 A.2d 984 (1976). ‘The rule forbidding the second action is not, however, one “of unbending rigor, nor of universal application, nor a principle of absolute law . . . .” Hatch v. Spofford, [supra].Farley-Harvey Co. v. Madden, 105 Conn. 679, 682, 136 A. 586 (1927); see Brochin v. Connecticut Importing Co., 137 Conn. 350, 352, 77 A.2d 336 (1950); Dettenborn v. Hartford-National Bank & Trust Co., supra, 393.” Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., supra, 112-13. We must examine the pleadings to ascertain whether the actions are “virtually alike.” See Solomon v. Aberman, supra, 383.

The allegations contained in the plaintiff’s complaints in both actions are identical, and, as we have already explained, the actions arise from the same factual background. Therefore, although we have recognized that “[t]he fact that the damages sought by the plaintiff in these two cases may overlap is not dispositive”; Solomon v. Aberman, supra, 385; it is necessary in this case to analyze the prayers for relief in these two complaints in order to ascertain the “ends or objects” of these two actions.

In the first action, the administrative appeal taken pursuant to § 10-151 (f), the plaintiff is seeking a determination from the trial court that the defendant’s “final decision” be reversed, that the defendant’s attempt to terminate her “be declared invalid and of no effect,” and that the matter be remanded to the defendant for the purpose of determining the amount of back pay and benefits the plaintiff should receive. In the second action, which is the subject of this appeal, the plaintiff seeks both a writ of mandamus and a declaratory judgment to the effect that the plaintiff either be reinstated to her former position as a tenured teacher or be granted a “new hearing” by the defendant and that the defendant be ordered to hold a hearing on the amount of back pay and benefits she should receive. As the trial court correctly observed, the result of the second action “would be mutual to the relief sought in the administrative appeal [first action]. ...”

We have recently said that “[m]andamus is an extraordinary remedy, designed to enforce a plain, positive duty and available only to one who has a clear legal right to performance of that duty. Cheshire Taxpayers’ Action Committee, Inc. v. Guilford, 193 Conn. 1, 5, 474 A.2d 97 (1984).” Simons v. Canty, 195 Conn. 524, 533, 488 A.2d 1267 (1985). It is obvious that if this plaintiff could establish as a necessary threshold requirement to the issuance of the writ the “clear legal right” to the relief she has requested, that right could also be established, as well as vindicated, on her § 10-151 appeal. Moreover, the request for a declaratory judgment would require the trial court “to ascertain the rights of the parties under existing law.” (Citations omitted.) Middlebury v. Steinmann, 189 Conn. 710, 715, 458 A.2d 393 (1983). In both the first action and the second action then, the plaintiff would be required to establish her right to an order from the court granting the relief requested, which in the two cases is ultimately the same: reinstatement or a new hearing and back pay and benefits. “[T]he fact that different relief is sought does not prevent [dismissal] of a second action adjudicating the same underlying rights. ” (Emphasis added.) 1 Stephenson, Conn. Civ. Proc. (2d Ed.) § 104b, p. 423.

In sum, the “same underlying rights,” i.e., rights to reinstatement, new hearing, back pay and benefits, which the plaintiff asserted in the second action would be adjudicated and necessarily determined in the prior pending action. See Zachs v. Public Utilities Commission, supra, 393; Cahill v. Cahill, 76 Conn. 542, 548, 57 A. 284 (1904). This the plaintiff has correctly conceded, and in this court she has presented neither claim nor argument that any remedy that could be accorded her in the prior pending action would be inadequate or incomplete. See Welles v. Rhodes, 59 Conn. 498, 504, 22 A. 286 (1890). Therefore, the trial court correctly dismissed the second action.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 10-151 (f) provides: “Any teacher aggrieved by the decision of a board of education or board of trustees of an incorporated or endowed high school or academy approved pursuant to section 10-84 after a hearing as provided in subsection (b) of this section may appeal therefrom, within thirty days of such decision, to the superior court for the judicial district in which such board or such high school or academy is located. Such appeal shall be made returnable to said court in the same manner as is prescribed for civil actions brought to said court. Any such appeal shall be a privileged case to be heard by the court as soon after the return day as is practicable. The board of education or the board of trustees of the incorporated or endowed high school or academy shall file with the court a copy of the complete transcript of the proceedings of the hearing held by the board of education or board of trustees of the incorporated or endowed high school or academy or by an impartial hearing panel for such teacher, together with such other documents, or certified copies thereof, as shall constitute the record of the case appealed from. The court, upon such appeal, shall review the proceedings of such hearing and shall allow any party to such appeal to introduce evidence in addition to the contents of such transcript, if it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court, upon such appeal and after a hearing thereon, may affirm or reverse the decision appealed from. Costs shall not be allowed against the board of education or board of trustees of the incorporated or endowed high school or academy unless it appears to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.”

       The plaintiff in the present appeal, Mrs. Elinor Halpern, is the former Elinor Lee.

       The first twenty enumerated paragraphs of the two separate complaints are identical, except that the complaint in the first action omits a reference to the date of our decision in Lee v. Board of Education, 181 Conn. 69, 434 A.2d 333 (1980). The twenty-first paragraph in each complaint, as well as some of the language in the prayer for relief as enunciated in the text, differs.
      In the direct appeal filed by the plaintiff pursuant to General Statutes § 10-151 (f), the plaintiff alleges: “21. The plaintiff is aggrieved by the defendant board’s actions and decision.”
      In the present action, the plaintiff alleges in the twenty-first paragraph of her complaint: “21. Since August 30,1974, defendant has refused to pay plaintiff any of the wages and benefits to which she would be entitled as a tenured teacher, and the plaintiff is aggrieved by the defendant’s actions.”

       We have recognized that the prior pending action rule does not truly implicate the subject matter jurisdiction of the court. Henry F. Raab Connecticut, Inc. v. J. W. Fisher Co., 183 Conn. 108, 111-12, 438 A.2d 834 (1981); see also Nielsen v. Nielsen, 3 Conn. App. 679, 682, 491 A.2d 1112 (1985). Any claim “that the pendency of a prior suit between the same parties, for the same thing, will abate a latter suit”; Quinebaug Bank v. Tarbox, 20 Conn. 509, 514 (1850); formerly could be raised by a “plea in abatement.” See, e.g., Zachs v. Public Utilities Commission, 171 Conn. 387, 370 A.2d 984 (1976); Ward v. Curtiss, 18 Conn. 290 (1847); Durand v. Carrington, 1 Root 355 (1792). The plea in abatement; Practice Book, 1963, § 93; has, however, since been replaced by the motion to dismiss. Practice Book §§ 142,143; 1 Stephenson, Conn. Civ. Proc. (2d Ed. 1982 Sup.) § 103a. The parties in the present case properly proceeded upon the assumption then that the motion to dismiss was the proper device by which to request that the trial court dismiss the second action. 1 Stephenson, supra, § 104a; see also Hannafin v. Ethics Commission, 39 Conn. Sup. 99,102, 470 A.2d 720 (1984).

       We have often stated that we generally review an appeal upon the theory under which it was tried and adjudicated in the court below. See, e.g., Fuessenich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985). Because the plaintiff is now effectively “out of court” on the second action, we are not required here to consider any potential implications of our recent decisions in Laurel Park, Inc. v. Pac, 194 Conn. 677, 485 A.2d 1272 (1984), and Juliano v. Farrell, 196 Conn. 283, 492 A.2d 187 (1985). In those cases we indicated that the availability of an administrative appeal to provide the same relief as that sought in an action for an injunction or for a writ of mandamus barred resort to those remedies. “We have frequently stated that when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” (Citations omitted.) Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979). The application of these principles to the present action seeking a declaratory judgment and a writ of mandamus might also support the judgment of dismissal. Because neither the parties nor the trial court have discussed this alternative ground for affirmance, however, we have decided to rely wholly upon the prior pending action doctrine, the only ground considered by the parties or the trial court.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    State of Connecticut v. William Dupree
    (12222)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.

      Argued April 4
    decision released July 16, 1985

      Julia D. Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, Mary M. Galvin, assistant state’s attorney, and Eric Mogilnicki, legal intern, for the appellant-cross appellee (state).

      Peter A. Kelly, for the appellee-cross appellant (defendant).
   Callahan, J.

This is an appeal by the state, with the permission of the trial court, from the judgment sentencing the defendant, after conviction by a jury of two counts of arson murder in violation of General Statutes § 53a-54d, to a term of life imprisonment suspended after twenty-five years with probation for five years. The counts arose from the deaths of the defendant’s former wife, Laurel Dupree, and her seven year old son, David Neal, in a fire at 414 Winthrop Avenue, New Haven, in the early morning hours of September 24,1981. The state claims that the trial court erred in refusing to sentence the defendant in accordance with the mandate of General Statutes § 53a-54d. The defendant has filed a cross appeal claiming the trial court erred (1) in ruling that the arson murder statute is constitutional and (2) in denying the defendant’s motion to suppress an out-of-court identification of the defendant by a state’s witness. We find no error in either the appeal or the cross appeal.

I

We will first consider the state’s appeal. The trial court, in sentencing the defendant, merged the two counts of arson murder into one count and thereafter imposed one sentence, a term of life imprisonment, to be suspended after the defendant served twenty-five years, with a period of probation of five years. The merger of the counts is not an issue in this appeal. The state, however, challenges the legality of the trial court’s suspension, after twenty-five years, of the sentence of life imprisonment imposed on the defendant. It is from the judgment suspending a portion of the defendant’s sentence that the state appeals.

The arson murder statute, General Statutes § 53a-54d, provides: “arson murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.” The state claims that the arson murder statute requires the trial court to impose a mandatory sentence of life imprisonment on the defendant without eligibility for parole and that the trial court was prohibited from suspending any portion of that sentence.

If this crime had been committed prior to July 1, 1981, the trial court could not have suspended any portion of the life sentence mandated by the arson murder statute. Before that date, lengthy felony sentences were required to be indeterminate, necessitating the imposition of a minimum and a maximum sentence. General Statutes § 53a-35 (a). A trial court could not suspend a portion of an indeterminate sentence since such suspension would have been contrary to the intent and purpose of indeterminate sentencing. The provision of General Statutes § 53a-54d which requires that one convicted of arson murder be “punished by life imprisonment and shall not be eligible for parole” eliminated both the possibility of parole and the necessity of imposing a minimum sentence, the imposition of which would have been a futile gesture since its only purpose was to determine a date for parole eligibility. General Statutes § 54-125. Therefore, in the context of an indeterminate sentencing scheme, the arson murder statute required the imposition of a mandatory life sentence to be served in its entirety.

In the 1980 legislative session, however, the legislature passed what is now General Statutes § 53a-35a, which became effective on July 1, 1981, prior to the date of this crime. This statute instituted definite sentencing and effectively eliminated parole in Connecticut. There is a presumption that the legislature knew all existing statutes and intended the effect which its action would have. Farricielli v. Personnel Appeal Board, 186 Conn. 198, 205, 440 A.2d 286 (1982); Beccia v. Waterbury, 185 Conn. 445, 459, 441 A.2d 131 (1981). The effect of General Statutes § 53a-35a is to put the arson murder statute in the context of a definite sentencing scheme and to render the phrase “shall not be eligible for parole” in the statute meaningless. There is no reason to believe, however, that the legislature intended the entire statute to be without meaning or effect. This situation is analogous to that in which a portion of a statute is declared unconstitutional. If the statute is severable, the portion of the -statute which is valid remains operative. State ex rel. Bennett v. Glynn, 154 Conn. 237, 243, 224 A.2d 711 (1966). Therefore, General Statutes § 53a-54d remains effective to make arson murder a crime and to require anyone convicted of that offense to receive a life sentence. Although the legislature may have originally intended to require anyone convicted of arson murder to serve a life sentence in its entirety, the court is bound by what the legislature has in fact said and not by what it meant to say. State v. Smith, 194 Conn. 213, 222, 479 A.2d 814 (1984); Gomeau v. Forrest, 176 Conn. 523, 526, 409 A.2d 1006 (1979). Further, the court is required to construe criminal statutes strictly against the state and in favor of the accused. State v. DeMartin, 171 Conn. 524, 544, 370 A.2d 1038 (1976); State v. Cataudella, 159 Conn. 544, 555, 271 A.2d 99 (1970). It is also a rule of statutory construction that unless there is ambiguity in the language of a statute, there is no occasion to look to the legislative intent. In re Petition of State’s Attorney, Cook County, Illinois, 179 Conn. 102, 107, 425 A.2d 588 (1979).

There is no ambiguity in the language of the presently effective portion of the arson murder statute. It requires the trial court to impose a sentence of life imprisonment on the defendant. The trial court did in fact impose a sentence of life imprisonment. There is now nothing in the language of § 53a-54d, or in any other section of the General Statutes, which explicitly prohibits the trial court from suspending a portion of that sentence. Absent a statutory prohibition, a term of imprisonment with the execution of such sentence of imprisonment suspended after a period set by the court and a period of probation is an authorized sentence. General Statutes § 53a-28 (b) (5).

The state argues, however, that arson murder is another form of murder and that General Statutes § 53a-54a (c) requires that all forms of murder, “unless . . . a capital felony,” be punished as a class A felony. It further argues that General Statutes § 53a-29 (a) rules out probation, such as that imposed in this case, for a class A felony and that a suspended sentence, unless accompanied by a period of probation, is not an authorized sentence under General Statutes § 53a-28 (b) (5). Therefore, the state concludes that the trial court, by not imposing a life sentence to be served in its entirety, imposed an illegal sentence. We disagree.

The legislature chose to insert the penalty of life imprisonment, an expressly specified sentence, directly into the arson murder statute. That expressly specified sentence contained in General Statutes § 53a-54d removed the arson murder statute from the ambit of General Statutes § 53a-54a (c), which punishes murder as a class A felony, and placed it squarely within the definition of an unclassified felony in General Statutes § 53a-25. There is no statutory provision which prohibits the suspension of a portion of a sentence of imprisonment accompanied by a period of probation for an unclassified felony. The trial court, therefore, had the authority to impose the sentence which it did.

II

The defendant’s initial claim on his cross appeal is that General Statutes § 53a-54d violates his right to due process of law under the fourteenth amendment to the United States constitution and article first, § 8, of the constitution of Connecticut. A party contesting a statute’s constitutionality has a heavy burden to prove unconstitutionality beyond a reasonable doubt. Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); Adams v. Rubinow, 157 Conn. 150, 152, 251 A.2d 49 (1968).

The defendant’s claim appears to be that the statute, merely from proof of the underlying crime of arson, creates an irrebuttable presumption of intent to cause death, and that such intent is an element of the crime of arson murder. A statute which creates a presumption and shifts to the defendant the burden to disprove an element of the crime charged would be a violation of both the federal and state due process clauses. Due process requires that the state prove all the elements of the crime charged beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 520-24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v. Little, 194 Conn. 665, 671, 485 A.2d 913 (1984); State v. Scielzo, 190 Conn. 191, 196, 460 A.2d 951 (1983).

The defendant misconstrues the statute. Intent to cause death is not an element of the crime of arson murder. Arson murder has no mens rea requirement beyond that of an intention to commit the underlying crime of arson upon which the charge of arson murder is predicated. See State v. Valeriano, 191 Conn. 659, 662, 468 A.2d 936 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); State v. Young, 191 Conn. 636, 639-44, 469 A.2d 1189 (1983).

Since the statute does not shift the burden of proof as to an element of the crime, the trial court did not err in finding that General Statutes § 53a-54d does not violate the defendant’s right to due process of law.

Ill

The defendant next claims that the statute denies him equal protection of the law in violation of the federal and state constitutions. The defendant notes that while arson murder carries a mandatory life sentence, felony murder and murder do not. The defendant argues that there is nothing so qualitatively different about arson murder as compared to murder or felony murder that justifies a more severe punishment for arson murder. Therefore, the defendant claims the arson murder statute, which requires a life sentence on conviction, defies any scheme of rational classification and lays an unequal and heavier hand on those, including himself, convicted of what is essentially the same offense as murder or felony murder. We held earlier in this opinion that the trial court had the authority to suspend a portion of the defendant’s sentence of life imprisonment. Nevertheless, since the defendant faces the possibility of serving his entire sentence if he violates the terms of his probation, his equal protection claim will be briefly addressed.

When legislation neither containing a suspect classification nor impinging on a fundamental right is challenged on equal protection grounds, the burden is on the complaining party to establish that the statutory distinction is without rational basis. Miller v. Heffernan, 173 Conn. 506, 509, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978).

The classification of crimes is for the legislature. State v. Rao, 171 Conn. 600, 603, 370 A.2d 1310 (1976). In examining the rationality of a legislative classification, we are bound to defer to the judgment of the legislature unless the classification is clearly irrational and unreasonable. State v. Simmat, 184 Conn. 222, 224-25, 439 A.2d 915 (1981). Murder and felony murder are obviously serious crimes but generally speaking have only a limited area of impact. Arson, on the other hand, has the potential for disaster not only to any intended victims but also to entire neighborhoods and multiple unintended victims. See Curtis, A Treatise on the Law of Arson (1936) § 3 (common law arson a crime against habitation interests); 4 Blackstone, Commentaries on the Laws of England, c. 16. We cannot say that the legislature acted irrationally in opting to punish more severely what it could reasonably perceive to be the greater danger to the community. The trial court did not err in finding that § 53a-54d does not violate the equal protection clauses of the federal and state constitutions.

IV

The defendant further claims that the penalty provision of the arson murder statute constitutes cruel and unusual punishment and is therefore violative of the eighth amendment to the federal constitution and article first, § 8, of the Connecticut constitution. The defendant claims that the statute is an anomaly in our statutory scheme, because it requires a more severe sentence than that for the comparable crimes of murder or felony murder, and is therefore obviously disproportionate to the crime committed.

As indicated earlier in this opinion, the classification of crimes is a matter for the legislature. State v. Rao, supra, 603. Legislative prerogative, however, is not open-ended. The United States Supreme Court has held that while reviewing courts should grant substantial deference to the broad authority that legislatures possess in determining the types and limits of punishment for crimes, a criminal sentence must be proportionate to the crime for which the defendant has been convicted. Solem v. Helm, 463 U.S. 277, 288-90, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983). The Supreme Court noted in Solem v. Helm, supra, however, that “outside the context of capital punishment, successful challenges to the proportionality of particular sentences [will be] exceedingly rare.” Id. In Solem, the court held that a sentence to life imprisonment for what the court deemed “one of the most passive felonies a person could commit,” was grossly disproportionate to the nature of the offense. Id., citing State v. Helm, 287 N.W.2d 497, 501 (S.D. 1980) (Henderson, J., dissenting). We do not find that the defendant’s sentence was grossly disproportionate to the nature of the offense involved in this case.

V

The defendant’s final claim is that the trial court erred in allowing into evidence testimony by a state’s witness, Paul Swiderski, of his out-of-court identification of the defendant. On September 24, 1981, Swiderski, a sixteen year old attendant, was working at an all night filling station known as “Pitts.” The station was located approximately 1.2 miles from 414 Winthrop Avenue, the scene of the fire. According to an expert witness for the state, the fire started at approximately 2 a.m. At about 3:30 a.m. Patrolman Richard Rohloff of the New Haven police department showed the witness a single “mug shot” of the defendant and inquired whether he had sold gasoline to the person depicted in the photograph. Swiderski identified the photo as that of a man to whom he had sold gas earlier that morning. He recalled that the man had pumped the gas into a plastic container.

The trial court conducted a hearing outside the presence of the jury on the issue of the admissibility of Swiderski’s out-of-court identification. Subsequently the trial court found that the identification procedure was impermissibly and unnecessarily suggestive. It found, however, that in view of the totality of the circumstances the identification was reliable, and Swiderski was allowed to testify at trial to the out-of-court identification. Neil v. Biggers, 409 U.S. 188, 199-201, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Manson v. Brathwaite, 432 U.S. 98, 134, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

This court has reexamined the question of the overall reliability of the identification procedure used in this case. State v. Gordon, 185 Conn. 402, 416, 441 A.2d 119 (1981); see State v. Doolittle, 189 Conn. 183, 192, 455 A.2d 843 (1983). After a close examination of the record we see no reason to disturb the trial court’s finding.

We find no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-35. imprisonment for any felony committed PRIOR TO JULY 1, 1981: INDETERMINATE SENTENCES; MAXIMUM AND minimum terms, (a) For any felony committed prior to July 1, 1981, the sentence of imprisonment shall be an indeterminate sentence, except as provided in subsection (d). When such a sentence is imposed the court shall impose a maximum term in accordance with the provisions of subsection (b) and the minimum term shall be as provided in subsection (c) or (d). . . .”

       General Statutes § 53a-28 (b) (5) and (6) authorized only the suspension of an entire indeterminate sentence or definite sentence or a portion of a definite sentence. To hold that it authorized the suspension of a portion of an indeterminate sentence would conflict with General Statutes § 54-125 which vested the authority and discretion to release any person confined under an indeterminate sentence with the board of parole. Michaels v. York, 31 Conn. Sup. 350, 352, 330 A.2d 466 (1974).

      . “[General Statutes] Sec. 53a-35a. imprisonment for any felony committed ON OR AFTER JULY 1, 1981: DEFINITE SENTENCES; TERMS AUTHORIZED. For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows: (1) For a capital felony, a term of life unless a sentence of death is imposed in accordance with section 53a-46a; (2) for the class A felony of murder, a term not less than twenty-five years nor more than life; (3) for a class A felony other than murder, a term not less than ten years nor more than twenty-five years; (4) for a class B felony, a term not less than one year nor more than twenty years, except that for a conviction under section 53a-55a, 53a-59 (a) (1), 53a-59a, 53a-70a, 53a-94a, 53a-101 (a) (1) or 53a-134 (a) (2), the term shall be not less than five years nor more than twenty years; (5) for a class C felony, a term not less than one year nor more than ten years, except that for a conviction under section 53a-56a, the term shall be not less than three years nor more than ten years; (6) for a class D felony, a term not less than one year nor more than five years, except that for a conviction under section 53a-60b, the term shall be not less than two years nor more than five years, and for a conviction under section 53a-60c, the term shall be not less than three years nor more than five years; (7) for an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines the crime.”

       “[General Statutes] Sec. 53a-28. authorized sentences, (a) Except as provided in chapter 368p, to the extent that such chapter is inconsistent herewith, every person convicted of an offense shall be sentenced in accordance with this title.
      “(b) Except as provided in sections 53a-45, 53a-46a, 53a-54b and 53a-92, when a person is convicted of an offense, the court shall impose one of the following sentences: (1) A term of imprisonment; or (2) a sentence authorized by sections 18-65a or 18-73 or (3) a fine; or (4) a term of imprisonment and a fine; or (5) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a period of probation or a period of conditional discharge; or (6) a term of imprisonment, with the execution of such sentence of imprisonment suspended, entirely or after a period set by the court, and a fine and a period of probation, or a period of conditional discharge; or (7) a fine and a sentence authorized by section 18-65 or 18-73; or (8) a sentence of unconditional discharge.
      “(c) A sentence to a period of probation or conditional discharge in accordance with sections 53a-29 to 53a-34, inclusive, shall be deemed a revocable disposition, in that such sentence shall be tentative to the extent that it may be altered or revoked in accordance with said sections but for all other purposes it shall be deemed to be a final judgment of conviction.”

       “[General Statutes] Sec. 53a-54a. murder DEFINED. AFFIRMATIVE DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
      “(b) Evidence that the defendant suffered from a mental disease, mental defect or other mental abnormality is admissible, in a prosecution under subsection (a), on the question of whether the defendant acted with intent to cause the death of another person.
      “(c) Murder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony.”

       “[General Statutes] Sec. 53a-29. probation and conditional discharge: criteria; periods, (a) The court may sentence a person to a period of probation upon conviction of any crime, other than a class A felony, if it is of the opinion that: (1) Present or extended institutional confinement of the defendant is not necessary for the protection of the public; (2) the defendant is in need of guidance, training or assistance which, in his case, can be effectively administered through probation supervision; and (3) such disposition is not inconsistent with the ends of justice. . . .”

       “[General Statutes] Sec. 53a-25. felony: definition, classification, designation, (a) Any offense for which a person may be sentenced to a term of imprisonment in excess of one year is a felony.
      “(b) Felonies are classified for the purposes of sentence as follows: (1) Class A, (2) class B, (3) class C, (4) class D, (5) unclassified and (6) capital felonies for which the sentence of death may be imposed as provided in sections 53a-46a and 53a-54b.
      “(c) The particular classification of each felony defined in this chapter is expressly designated in the section defining it. Any offense defined in any other section of the general statutes which, by virtue of any expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified felony.”

       The defendant, Helm, was charged with uttering a no account check for one hundred dollars and also with being an habitual offender. The court noted that although the charges were not trivial, neither involved violence or threat of violence to any person. Solem, v. Helm, 463 U.S. 277, 296, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983).


author: Dannehy, J.

text:
    State of Connecticut v. Danny Hill
    (11934)
    Peters, C. J., Healey, Shea, Dannehy and S. Freedman, Js.

      Argued March 6
    decision released July 16, 1985

      A. A. Washton, with whom was Peter W. Rotella, for the appellant (defendant).

      John F. Cocheo, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, state’s attorney, for the appellee (state).
   Dannehy, J.

After a jury trial the defendant was found guilty of arson murder in violation of General Statutes § ¡SSa-Md. Thereafter, in accordance with the provisions of that statute, the trial judge sentenced the defendant to a term of life imprisonment without eligibility for parole. In his appeal from that judgment the defendant claims that: (1) the trial court unduly restricted his voir dire examination of the individual jurors; (2) the trial court erred in refusing to permit evidence of another’s motive to commit the arson; (3) the arson murder statute violates his right to due process; and (4) the arson murder statute does not restrict the trial court’s power to suspend or reduce the sentence required thereunder.

There is no dispute but that on February 7,1982, at 11:28 p.m., a fire was reported in progress at 28 Beldon Street in New London. In the course of extinguishing the blaze, a fireman discovered in the top floor apartment of the building the dead body of an elderly woman. It was later determined that her death had resulted from asphyxiation due to smoke inhalation.

At the trial, the state introduced the testimony of an eyewitness who stated that, while at the first floor apartment of 28 Beldon Street on the evening of the fire, she saw the defendant sprinkle what smelled to her like gasoline onto some objects on the floor and then light a match. The landlord of the building testified that he had instituted proceedings to evict the defendant from the apartment he rented on the first floor and farther that, on the night of the fire, he saw the defendant at the scene “with a big smirk” on his face. A New London police officer, who was also at the scene of the fire, testified that he, too, saw the defendant there and that he could smell gasoline emanating from the person of the defendant. Another police officer testified that, as a result of the ensuing investigation, an arrest warrant was issued for the defendant. He and another officer went to the defendant’s home to advise him that he was under arrest. The defendant attempted to flee. He was apprehended after a short chase on foot.

The defendant offered an alibi defense. In support thereof, he introduced the testimony of two witnesses who testified that the defendant was watching television with friends at the time the arson was committed. The defendant also attempted to offer evidence of a possible motive on the part of the landlord to commit the arson.

After the jury returned its verdict, the trial judge ruled that § 53a-54d mandated that the defendant be sentenced to a term of life imprisonment without eligibility for parole.

The defendant first contends that the trial court unduly restricted the scope of the voir dire examination by refusing to permit defense counsel to inquire of prospective jurors whether they would be inclined to attach greater credence to the testimony of a law enforcement officer merely because that witness was a law enforcement officer. We agree.

The record discloses that the panel of prospective jurors was comprised of approximately fifty people. During its examination of the first juror, the state asked: “Would the mere fact that a witness is a police officer mean to you that his testimony or her testimony is worth any more or any less than any other witness?” Defense counsel posed a similar question to the second juror. Prior to the examination of the third juror, the trial judge informed counsel that “I won’t allow any further questions along the lines of the credibility of police officers; that is, merely because he is a police officer. That is an area that is covered in the Judge’s charge to the Jury.” Defense counsel indicated to the court that he believed this was a proper question but that he would try to “work it in another way” so as not to disobey the court’s ruling.

The third juror was then asked by defense counsel whether she would attach more weight to the testimony of any witness merely because of that person’s profession or occupation. The trial court would not allow the question and an exception was duly noted. The same question was rephrased and repeated many times but to no avail. Thereafter, defense counsel attempted to question several more jurors regarding the credibility they would attach to the testimony of a police officer. Each time the trial court disallowed the question. Eventually, defense counsel realized the futility of pursuing this line of inquiry and refrained from doing so throughout the remainder of the voir dire examinations.

The right to a voir dire examination of each prospective juror in a criminal action is provided by § 54-82f of the General Statutes. This right was established as a constitutional one in 1972 by inclusion in article IV of the amendments to the state constitution of the provision that “[t]he right to question each juror individually by counsel shall be inviolate.” See State v. Haskins, 188 Conn. 432, 446, 450 A.2d 828 (1982); State v. Anthony, 172 Conn. 172, 174, 374 A.2d 156 (1976).

Examination of jurors on voir dire has a two-fold purpose; first, it permits the trial court to determine whether the prospective juror is qualified to serve and second, it aids counsel in exercising their rights to peremptory challenges. State v. Haskins, supra, 446. It is true that the extent to which the parties may go in such an examination rests largely within the discretion of the trial court and the exercise of that discretion will not constitute reversible error unless it has clearly been abused or harmful prejudice appears to have resulted. State v. Anthony, supra, 174. “Nevertheless, in exercising its discretion, the court should grant such latitude as is reasonably necessary to fairly accomplish the purposes of the voir dire. Clearly, therefore, if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.” State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).

In this case, almost half of the witnesses called by the state were either police officers or fire officials. Their testimony was crucial to the state’s case as it tended to corroborate the testimony of the sole eyewitness, a witness whose credibility was highly questionable in light of the conflicting statements she had made prior to the trial. Similarly, crucial testimony of police officers concerning the strong odor of gasoline emanating from the defendant on the night of the fire and his attempted flight upon arrest was evidence which, if believed, would have supported an inference of guilt. When important testimony is anticipated from certain witnesses whose official or semi-official status is such that a juror might reasonably be more, or less, inclined to credit their testimony, a query as to whether a juror would have such an inclination should be permitted. See Brown v. United States, 338 F.2d 543 (D.C. Cir. 1964); Sellers v. United States, 271 F.2d 475 (D.C. Cir. 1959); Harvin v. United States, 297 A.2d 774 (D.C. 1972). It was of vital importance to the defendant that if any such inclination existed it be brought to light. He was entitled to explore this area of possible disqualification prior to the impaneling of the jury. Only then could he intelligently challenge for cause or exercise his right of peremptory challenge. State v. Higgs, supra, 144.

Nothing could be plainer than that a predisposition to attach greater or less credence to a witness’ testimony simply because of that witness’ position as an officer is inconsistent with the defendant’s constitutional and statutory right to an impartial jury. The denial of such a fundamental right cannot be countenanced. The trial court’s refusal to allow defense counsel to ask prospective jurors whether they would be inclined to give more weight to the testimony of a police officer merely because of that person’s official status constituted an abuse of discretion. We find error and order a new trial.

Our holding is dispositive of this appeal; however, we will consider certain of the defendant’s other claims of error which are likely to arise upon retrial.

During the course of the trial, the defendant sought to introduce evidence of a financial motive on the part of the landlord of the burned building, John M. Piscezek, to commit the arson. In his cross-examination of Piscezek, defense counsel established that the defendant and his wife had entered into an option agreement with the witness to purchase the building at 28 Beldon Street. The witness was then asked when he purchased the property. The state objected, claiming that the question was irrelevant. In the absence of the jury, the defendant argued that the question was preliminary to a series of questions regarding the purchase price paid by the witness, insurance coverage and the beneficiary of any such insurance proceeds. The trial court sustained the objection and an exception was taken.

The defendant then attempted, through a witness of his own, to show that 28 Beldon Street was insured, the amount of coverage, and the person to whom the insurance proceeds were payable. The state again objected, this time claiming that any evidence of Piscezek’s purported motive was speculative. The objection was sustained by the trial court and the defendant took an exception.

It is always competent for a defendant to give evidence tending to show that another committed the crime with which the defendant has been charged. State v. Gold, 180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974). Evidence of another’s motive, however, is not enough where there is no other proof in the case which tends to connect such other person with the offense charged. State v. Marshall, supra, 601.

Upon our review of the record, we find that the testimony concerning Piscezek’s financial motive should have been admitted. Here, there was more than mere evidence of a motive on the part of a third party. Piscezek admitted that he was present at 28 Beldon Street on the night of the fire. He left the premises sometime between 10 and 10:30 p.m. A fire marshall conceded that the fire could have started about 10:30 p.m. Lonnie Dixon, a tenant on the second floor of the building, heard someone drive away in a Volkswagen about 10:45 p.m. and about one-half hour later, he smelled smoke and saw flames. Piscezek had driven to the budding in a Volkswagen. He was the last person known to have left the premises prior to the outbreak of the fire except for the testimony implicating the defendant.

Although a court has wide discretion in its rulings on the relevancy of evidence; State v. Gold, supra, 646; we conclude that the trial court abused its discretion in excluding the evidence concerning Piscezek’s financial motive. The evidence establishing Piscezek’s presence at 28 Beldon Street just prior to the outbreak of the fire tended to connect him with the crime. Once that evidence was adduced, other evidence concerning Piscezek’s financial motive became admissible. Id., 647. The weight to be accorded such evidence would, of course, have been determined by the jury. Id.

The defendant also contends that the arson murder statute violates his right to due process of law by creating a conclusive presumption of intent to cause the death of a person once it is proven beyond a reasonable doubt that the accused intended to commit an arson. Specifically, he claims that the jury, in accordance with the instructions given by the trial court, was forced to find a murder once they determined beyond a reasonable doubt that the defendant intended to commit the arson. This, he argues, constituted an improper invasion of the jury’s factfinding function and as a result, he was denied his constitutional right of due process.

The defendant was tried and convicted upon an indictment charging him with the crime of arson murder. An indictment for arson murder in violation of General Statutes § 53a-54d does not carry with it charges of homicide in a lesser degree than that charged. See State v. Morin, 180 Conn. 599, 430 A.2d 1297 (1980). The crime of arson murder as defined in relevant part by § 53a-54d provides that: “A person is guilty of murder when . . . acting . . . alone ... he commits arson and, in the course of such arson, causes the death of a person.” By its explicit terms, the statute embodies a completed arson. The intent to cause death, which distinguishes murder as defined in General Statutes § 53a-54a from arson murder, is not an element of arson murder. State v. Dupree, 196 Conn. 655, 663, 495 A.2d 691 (1985). The trial court, therefore, did not err in refusing to instruct the jury, as requested by the defendant, that “you must consider whether the defendant intended to cause the death of another person when he set the fire . . . .”

We need not consider the defendant’s final claim, that the arson murder statute does not restrict the trial court’s power to suspend or reduce the sentence required thereunder, in light of our holding that he is entitled to a new trial. We note only that the arson murder statute does not preclude suspension of part of the mandatory life sentence. See State v. Dupree, supra.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-54d. ARSON murder. A person is guilty of murder when, acting either alone or with one or more persons, he commits arson and, in the course of such arson, causes the death of a person. Notwithstanding any other provision of the general statutes, any person convicted of murder under this section shall be punished by life imprisonment and shall not be eligible for parole.”

       Section 53a-35b of the General Statutes defines “life imprisonment” to mean a definite sentence of sixty years.

       “[General Statutes] Sec. 54-82f. voir dire examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”

       The only witness to connect the defendant directly to the fire was Mary Ann Hill, the defendant’s sister-in-law. In her initial statement to the police, Mary Ann implicated the defendant. She later recanted that statement when she testified before the grand jury. At trial, she explained that her story had changed because of threats from her husband that her children would be taken from her if she testified against the defendant.


author:
Shea, J.
      Brennan, J.,

text:
    Mildred Merlo v. The Planning and Zoning Commission of the Town of Wethersfield
    (12524)
    Peters, C. J., Healey, Shea, Callahan and Brennan, Js.

      Argued May 2
    decision released July 16, 1985

      Vincent F. Sabatini, with whom was Pamela S. Lorch, for the appellant (defendant).

      Paul J. Aparo, with whom was Harold F. Keith, for the appellee (plaintiff).
   Shea, J.

In this mandamus action the plaintiff sought an order that the defendant commission issue a certificate of approval of a subdivision plan she had submitted upon which a public hearing had been held by the commission. The ground relied upon by the plaintiff in her complaint was that the commission had failed to “approve, modify and approve, or disapprove” her subdivision plan, as required by General Statutes § 8-26, “within the period of time permitted under section 8-26d,” which provides that “[a]ll decisions on such matters shall be rendered within sixty-five days after completion of such hearing.” The trial court, Hon. Joseph E. Klau, state referee, concluded that the commission had disapproved the subdivision plan within the time allowed and rendered judgment for the defendant. On appeal by the plaintiff, the Appellate Court, Testo, Hull and Borden, Js., reversed the judgment of the trial court and ordered the defendant to certify its approval of the subdivision plan. Merlo v. Planning & Zoning Commission, 1 Conn. App. 621, 474 A.2d 477 (1984). Pursuant to General Statutes § 51-1971 the defendant petitioned this court to certify the case for our review, and the petition was granted. We reverse the judgment of the Appellate Court and effectively reinstate the judgment of the trial court.

On November 15, 1977, the plaintiff applied to the defendant planning and zoning commission of Wethersfield for approval of a forty-two lot subdivision of her land located on Wells Road and Crest Street in that town. A public hearing on the application was held on January 3,1978. The parties have stipulated that valid extensions of the statutory period for action on the subdivision plan, as requested by the plaintiff, were granted by the commission until July 18,1978. Within this period, on June 22, 1978, a regularly scheduled meeting of the commission was held at which the plaintiffs subdivision plan was considered. At this meeting a motion was made and seconded that the plan be approved subject to three “stipulations.” During the ensuing discussion several additional stipulations were proposed as amendments to the motion on the floor, but these were defeated. The original movant, as well as the commissioner who had seconded that proposal, accepted two additional stipulations for inclusion in their motion for approval of the subdivision. After some further debate the amended motion was disapproved by a vote of five to four. The minutes of the meeting recite that “the motion, with stipulations, was DISAPPROVED.” The commission clerk, in accordance with General Statutes § 8-26, on July 28,1978, published a legal notice of the decision on the application as follows: “motion to approve FAILED TO CARRY: Therefore this application was DENIED.” The commission took no further action on the plaintiff’s application.

The plaintiff, on August 8, 1978, made demand on the commission for a certificate of subdivision approval, claiming that because the commission had failed to “approve, modify and approve, or disapprove” her application as required by § 8-26, the subdivision plan had been automatically approved as the statute provided. The commission on August 15,1978, denied this request, maintaining that it had disapproved the application on June 22, 1978. Almost two years later, the plaintiff by a complaint dated July 31,1980, commenced this action of mandamus. At the same time she filed an administrative appeal from the commission’s August 15 decision alleging, in the first count, the refusal of the board to issue the requested certificate of subdivision approval and, in the second count, that the commission had acted arbitrarily and illegally by failing to take the requisite statutory action within the time prescribed and by exceeding its authority in not recognizing that the plan complied with the subdivision regulations. The administrative appeal is still pending in the trial court.

I

The defendant commission has raised in this court, as well as in the Appellate Court, a jurisdictional issue concerning the propriety of mandamus as a remedy where there is a statutory appeal available, such as that pending, in which a plaintiff includes as one ground for relief essentially the same claim presented in the mandamus action. The commission relies on the principle that “when a party has a statutory right of appeal from the decision of an administrative agency, he may not, instead of appealing, bring an independent action to test the very issue which the appeal was designed to test.” Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); see Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984). With respect to the extraordinary writ of mandamus, it is well established that an essential prerequisite for issuance of the writ is the absence of any other sufficient remedy. Juliano v. Farrell, 196 Conn. 283, 286, 492 A.2d 187 (1985); Kays, Inc. v. Board of Tax Review, 170 Conn. 477, 480, 365 A.2d 1207 (1976); Milford Board of Education Assn. v. Board of Education, 167 Conn. 513, 519, 356 A.2d 109 (1975).

As the Appellate Court noted, this court in several cases has implicitly approved mandamus as an appropriate remedy where it is claimed that a subdivision plan has been automatically approved pursuant to § 8-26 because of the failure of a planning commission to perform its statutory duty within the prescribed time. M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 445 A.2d 591 (1982); Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 440 A.2d 163 (1981); Viking Construction Co. v. Planning Commission, 181 Conn. 243, 435 A.2d 29 (1980). In Vartuli v. Sotire, 192 Conn. 353, 366, 472 A.2d 336 (1984), we held that the pendency of a zoning appeal, “which could do no more than secure approval of the coastal site plan, which already had been approved by operation of law,” did not preclude resort to the more expeditious and effective remedy of mandamus in order to “vindicate the plaintiffs’ right to the immediate issuance of a building permit.” The situation is similar in this case, where the plaintiff claims that her subdivision plan has been approved pursuant to § 8-26 by virtue of the inaction of the commission. If the plan has been approved by operation of law, as she contends, her right to certification of its approval by the commission can most directly, completely and expeditiously be effectuated by mandamus. See State ex rel. Brooks v. Hitchcock, 33 Conn. Sup. 686, 690-91, 367 A.2d 692 (1976).

II

The trial court concluded that the defeat of the motion to approve the subdivision application was a denial of the subdivision plan, as reflected by the notation in the minutes of the commission that the motion, with stipulations, “was DISAPPROVED” and as indicated by the published legal notice that the “application was DENIED.” The Appellate Court decided that “[t]he commission’s failure to approve the application with stipulations is not one of the three dispositions authorized in § 8-26,” declaring that “[t]he commission’s action obviously did not ‘approve’ or ‘modify and approve,’ and the defendant just as clearly did not ‘disapprove’ the subdivision application.” Merlo v. Planning & Zoning Commission, supra, 624.

The automatic approval provision of § 8-26 states that “[t]he failure of the commission to act” upon a subdivision application “shall be considered as an approval . . . . ” We have construed this provision to require a planning commission to “approve, modify and approve, or disapprove” such an application within the time allowed in order to avoid the sanction of automatic approval. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979); Finn v. Planning & Zoning Commission, 156 Conn. 540, 544, 244 A.2d 391 (1968). The question before us is whether the defeat of the motion to approve the application subject to the stipulations proposed by the movant constituted a “disapproval” of the application within the intent of the statute. We conclude that this action of the commission did constitute such a disapproval.

The circumstance that the final vote of the commission with respect to the application was upon a motion to approve, which was defeated by a majority, and that no motion to disapprove was ever voted upon warrants little discussion. We have previously held that the failure of an application to garner enough votes for its approval amounts to a rejection of the application. Lupinacci v. Planning & Zoning Commission, 153 Conn. 694, 696, 220 A.2d 274 (1966); Hall v. Planning & Zoning Board, 153 Conn. 574, 576, 219 A.2d 445 (1966). Here the motion to grant the application did not receive the majority vote necessary for approval, and the minutes, in accordance with our cases, correctly stated that it had been “DISAPPROVED.”

The fact that the motion to approve the subdivision plan included certain stipulations not included in the application as submitted by the plaintiff raises a more difficult question. From a parliamentary viewpoint, the defeat of this motion is not the equivalent of a disapproval of the application as submitted by the plaintiff. See Robert’s Rules of Order (1979 Rev.) § 33, pp. 144-45. In any practical sense, however, the majority vote against the application as modified by the stipulations contained in the motion, which appear to have been added in order to overcome objections raised by some commission members, indicates that the original subdivision plan would also have failed to receive sufficient votes for approval. If any commission member favored approval of the subdivison without any stipulations and believed that a majority might be similarly inclined, we may presume that such a motion would have been made.

It is the “failure of the commission to act” upon an application within the time provided that results in approval by operation of law under § 8-26. (Emphasis added.) We have ascertained that “[t]he obvious intention of the legislature in using this language was to ensure prompt and expeditious action on subdivison applications for protection of the subdivider.” Finn v. Planning & Zoning Commission, supra, 544. We have also observed that this statutory purpose “will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, setting in motion clear avenues of appeal.” Carpenter v. Planning & Zoning Commission, supra, 597. This statutory purpose, promptly to inform the subdivider of the status of his application, was adequately fulfilled here by the published notice of the commission that the “motion to approve FAILED TO CARRY: Therefore this application was DENIED.” This notice substantially complied with the requirement of the statute for “a simple statement that such application was . . . disapproved . . . . ” The plaintiff could not have been misled by that unequivocal announcement. Upon its publication she must be deemed to have known that her application had been disapproved by the commission and that she could then resort to the appeal remedy. Where the statutory purpose of definitive action upon an application within the time provided with proper notification thereof has been achieved, a deviation from standard parliamentary practice does not warrant imposition of the automatic approval sanction.

We conclude that, since the commission itself regarded its vote of June 22, 1978, as a disapproval of the application and the published notice so informed the plaintiff, the application was effectively disapproved on that date, well within the time allowed. The commission, therefore, fulfilled its statutory duty by taking one of the courses of action specified by § 8-26, disapproval of the application. Accordingly, there was no “failure of the commission to act” upon the application, as claimed by the plaintiff, that would result in automatic approval under the statute.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reinstate the judgment of the trial court.

In this opinion Peters, C. J., Healey and Callahan, Js., concurred.

Brennan, J.,

dissenting. I am not prepared to accept the conclusion that a disapproval of the plaintiff’s application as modified by stipulations added by the defendant commission constituted a denial of her application within the meaning of General Statutes § 8-26. This statute requires that the commission “approve, modify and approve, or disapprove any subdivision or resubdivision application . . . within the period of time permitted under section 8-26d.” General Statutes § 8-26. This statute further provides that “[t]he failure of the commission to act thereon shall be considered as an approval.”

Our court has uniformly held that the only action permitted the commission is to “approve, modify and approve, or disapprove any subdivision or resubdivision application,” and this provision has been strictly construed. Shapero v. Zoning Board, 192 Conn. 367, 370, 472 A.2d 345 (1984); M & L Homes, Inc. v. Zoning & Planning Commission, 187 Conn. 232, 239, 445 A.2d 591 (1982); Gervasi v. Town Plan & Zoning Commission, 184 Conn. 450, 454, 440 A.2d 163 (1981). For the defendant to add various conditions to the plaintiff’s application would constitute in my opinion a modification of her original application. A vote to disapprove the application as modified was not an action permitted by § 8-26. Only three courses of action were permitted the commission. If the legislature had felt that the commission should be permitted a fourth option, i.e., to modify and disapprove, as the defendant apparently assumed, it could have enacted such a provision.

In my judgment, after the plaintiff’s application had been disapproved as modified the defendant commission should have acted upon her original application. This it did not do. To assume that the vote to disapprove an application as amended is equivalent to a disapproval of the original application is a conclusion I am unable to reach.

The failure of the defendant to take any of the three required courses of action triggered, in my opinion, the automatic approval of § 8-26.

I would therefore find no error in the decision of the Appellate Court.

       The pertinent portion of General Statutes § 8-26 is as follows: “The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith, including existing subdivisions or resubdivisions made in violation of this section, within the period of time permitted under § 8-26d.”

       General Statutes § 8-26d (a) provides as follows: “In all matters wherein a formal application, request or appeal is submitted to a planning commission under this chapter and a hearing is held on such application, request or appeal, such hearing shall commence within sixty-five days after receipt of such application, request or appeal and shall be completed within thirty days after such hearing commences. All decisions on such matters shall be rendered within sixty-five days after completion of such hearing. The applicant may consent to one or more extensions of any period specified in this subsection, provided the total extension of any such period shall not be for longer than the original period as specified in this subsection, or may withdraw such application, request or appeal.”

       The record does not indicate that any such claim was raised in the trial court. Since the issue is jurisdictional; Laurel Park, Inc. v. Pac, 194 Conn. 677, 685, 485 A.2d 1272 (1984); Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 598, 409 A.2d 1029 (1979); it may, nevertheless, be considered on appeal. Kioukis v. Kioukis, 185 Conn. 249, 251 n.2, 440 A.2d 894 (1981); Molitor v. Molitor, 184 Conn. 530, 533 n.1, 440 A.2d 215 (1981). Similarly, the failure to include such an issue in the petition for certification does not preclude its review. See State v. Torrence, 196 Conn. 430, 434 nn.5 and 6, 493 A.2d 865 (1985).

       The complaint in this mandamus action is dated July 31, 1980, almost two years after the commission had on August 15, 1978, refused to issue a certificate of approval as requested. The reasons for this delay do not appear. The defendant had raised no claim of laches or advanced any other ground for defeating the action based upon this extraordinary lapse of time from the onset of the plaintiffs aggrievement. We thus have no occasion to consider the consequences of this delay. We also have no occasion to consider the consequences of a similar delay which transpired before the filing of the administrative appeal, which is still pending in the trial court.

       Since a court upon appeal from a decision of a planning commission has authority only to “review, revoke, modify or affirm any act of such commission,” it appears that ancillary relief in some form would be necessary where a commission refuses to certify a plan that has been approved.


author: Peters, C. J.

text:
    State of Connecticut v. Charles Braxton, Jr.
    (10475)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued June 5
    decision released July 16, 1985

      Suzanne Zitser, assistant public defender, with whom, on the brief, were Joette Katz and Eugene Riccio, public defenders, and Temmy Ann Pieszak and Susan M. Hankins, assistant public defenders, for the appellant (defendant).

      Patrick J. Clifford, assistant state’s attorney, with whom were Julia D. Dewey, assistant state’s attorney, and, on the brief, ArnoldMarkle, state’s attorney, for the appellee (state).
   Peters, C. J.

The principal issue on this appeal from a robbery conviction is whether a police officer conducted an investigative detention in an unconstitutionally intrusive manner. The defendant, Charles Braxton, Jr., was charged with the commission of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). The defendant’s constitutional claim was rejected by the trial court, which ruled admissible certain evidence seized and statements made during the detention. After a trial to a jury, which found the defendant guilty of the crime charged, he was sentenced to a term of not less than three nor more than ten years, and he filed a timely appeal.

The jury could reasonably have found the following facts. At approximately 9:20 p.m. on July 20, 1979, a convenience store at Fitch and Blake Streets in New Haven was robbed by three black men, one of whom was armed with a rifle. Approximately sixty-five dollars, including a ten-dollar roll of quarters, was taken from the cash register. The men attempted to flee from the scene of the crime in a station wagon which they were forced to abandon when it stalled just outside the store’s parking lot. The men then ran off in the direction of Dyer Street.

The New Haven police department immediately broadcast a description of the robbery. The police radio dispatch reported that three or four black male robbery suspects were running away from Fitch and Blake Streets easterly toward Dyer Street. Upon hearing the radio dispatch, police officer Everett C. Nichols, who was in a marked police car, began a search of the area in the vicinity of the robbery. He came upon the defendant emerging from the driveway of a home on a residential street near Dyer Street, four to six blocks from the scene of the robbery. The defendant’s location, physical appearance and demeanor aroused Nichols’ suspicions. The defendant stated, in reply to Nichols’ questions, that he was in the area because his car had broken down on Fitch Street due to overheating and he was therefore walking home.

Officer Nichols decided to detain the defendant for questioning by police detective Michael Sweeney, whom he knew to be investigating the robbery, and for a possible identification by a witness to the robbery. Nichols patted the defendant down, found no weapons, and thereafter placed the defendant in the back seat of the police car to await Sweeney’s arrival. Nichols informed the defendant that he would be taken home when Sweeney had completed his inquiry. The defendant, although not uncooperative, did not expressly consent to his detention.

While the defendant was being detained in the police car, Nichols made radio contact with police headquarters to report the existence of a possible robbery suspect. Shortly thereafter, Nichols heard a further radio dispatch indicating that the station wagon used in the robbery was registered to a Charles Braxton of New Haven. The defendant then acknowledged that he was Charles Braxton and that he was the owner of the station wagon. After an unsuccessful attempt to have one of the witnesses to the robbery identify the defendant, the defendant was, at about 9:40 p.m., arrested and searched by Sweeney. The search revealed that the defendant had on his person ten dollars in loose quarters, miscellaneous change, and a set of car keys that fit the station wagon.

In his appeal from his conviction for violation of General Statutes § 53a-134 (a) (4), the defendant raises two issues. His principal claim is that he was unconstitutionally detained when he was placed in officer Nichols’ police cruiser. His secondary claim is that the evidence presented at trial was insufficient to sustain the verdict rendered against him.

I

The defendant’s challenge to the propriety of his detention is a narrow one. The defendant concedes that officer Nichols had sufficient articulable grounds to justify the defendant’s original detention pursuant to the rule of Terry v. Ohio, 392 U.S. 1, 27-31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and that the duration of his detention did not exceed the limitations authorized by United States v. Sharpe, 470 U.S. , 105 S. Ct. 1568, 1575-76, 84 L. Ed. 2d 605 (1985). The defendant maintains that it was nonetheless unconstitutional for Nichols to effectuate the defendant’s detention by placing him in the officer’s police car. Relying on Hayes v. Florida, 470 U.S. , 105 S. Ct. 1643, 1646-47, 84 L. Ed. 2d 705 (1985), and Florida v. Royer, 460 U.S. 491, 500-509, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983), the defendant argues that this method of detention was unreasonably intrusive, and hence unconstitutional, and that materials seized and statements made as a result of his detention should therefore have been suppressed. We disagree.

One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly in order to check a description or an identification, so long as his conduct is “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry v. Ohio, supra, 19; see Model Code of Pre-Arraignment Procedure (Proposed Official Draft 1975) § 110.2 (3), and pp. 284-85. Determination of the means that are reasonably necessary to maintain the status quo necessarily depends upon a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect. Michigan v. Long, 463 U.S. 1032, 1051, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983); United States v. Place, 462 U.S. 696, 704-705, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); Florida v. Royer, supra, 499-500; State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981); State v. Watson, 165 Conn. 577, 584-85, 345 A.2d 532 (1973); 3 LaFave, Search and Seizure; A Treatise on the Fourth Amendment (1978) § 9.2, esp. pp. 30-31.

A police officer who has articulable grounds to believe that a crime has been committed and to detain someone who may be implicated in that crime must be permitted to make reasonable use of the resources at his disposal at the site of the investigatory stop. Without immediate access to the assistance of fellow officers, a lone police officer may reasonably need the facilities of his police cruiser for a brief period of time so that he may safely continue to assist in the investigation of the crime without risking the escape of the suspect. In choosing among his available options, he may reasonably determine that it is less intrusive for him to place the suspect in the back seat of a police car than to secure the suspect’s presence through alternate devices such as handcuffs. Cf. United States v. Lee, 372 F. Sup. 591, 593 (W.D. Pa.), aff’d without op., 505 F.2d 731 (3d Cir. 1974), cert. denied, 420 U.S. 933, 95 S. Ct. 1138, 43 L. Ed. 2d 407 (1975); State v. Aguirre, 130 Ariz. 54, 56, 633 P.2d 1047 (1981); State v. Griffin, 459 A.2d 1086, 1089-90 (Me. 1983). We therefore conclude that the trial court correctly found that the manner of the defendant’s detention was constitutionally permissible.

II

The defendant’s alternate challenge to his conviction urges us to find that the evidence adduced at trial was insufficient to establish his guilt. This issue was raised in the trial court by timely motions for acquittal both at the end of the state’s case and at the conclusion of the presentation of all of the evidence. We agree with the trial court’s denial of these motions.

When an appeal challenges the sufficiency of the evidence to justify a verdict of guilty, we have a twofold task. We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the verdict. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984); State v. Ferrell, 191 Conn. 37, 46, 463 A.2d 573 (1983). We then determine whether “ ‘the jury could have reasonably concluded, upon the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt.’ ” State v. Stepney, 191 Conn. 233, 255, 464 A.2d 758 (1983), cert. denied, 465 U.S. 1084, 104 S. Ct. 1455, 79 L. Ed. 2d 772, reh. denied, 466 U.S. 954, 104 S. Ct. 2163, 80 L. Ed. 2d 547 (1984); State v. Duhan, 194 Conn. 347, 355, 481 A.2d 48 (1984). In our appraisal of the evidence, it is of no moment that much of the relevant evidence may be circumstantial. We have repeatedly noted that “there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned.” State v. Haddad, 189 Conn. 383, 390,456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). “It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence.” State v. Perez, supra, 227; State v. Cimino, supra, 211.

Review of the evidence in this case reveals that the jury could properly have found the defendant guilty of having committed the crime of robbery or of having been an accomplice. The defendant was discovered near the scene of the crime within minutes of its commission. From his appearance, including the fact that he was perspiring profusely and breathing heavily, it was inferable that he had been running. His car had been parked at the scene of the robbery and was used as the attempted getaway car. His explanation that he had abandoned the car because the engine had overheated was undermined by the combination of evidence that the car had been driven, albeit briefly, after the robbery, that it had not been hot-wired, and that the defendant himself had the car keys in his possession when he was detained and then arrested. If the defendant had indeed been walking from Fitch Street to his home, as he claimed, his location when officer Nichols came upon him was not on the most direct route to his home on Howard Avenue. Among the items discovered when the defendant was searched upon his arrest was ten dollars in loose quarters, the precise amount contained in the wrapped roll of quarters stolen during the robbery. Despite the inability of the witnesses at the crime to identify the defendant, we conclude that this evidence, in its totality, was sufficient to sustain the verdict against the defendant.

There is no error.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-134. robbery in the first degree: class b felony, (a) A person is guilty of robbery in the first degree when, in the course of the commission of the crime 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. . . .”
      The information against the defendant also charged him with violation of the accessory statute, General Statutes § 53a-8. “[General Statutes] Sec. 53a-8. CRIMINAL LIABILITY FOR acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       Although the defendant has formally invoked both the fourth amendment to the United States constitution and article first, § 7, of the Connecticut constitution, he has proffered no argument that the rights afforded to him by the federal and the state constitutions are in any way distinguishable with respect to the substantive issue that he has raised. We see no reason, on the facts of this case, independently to undertake such an analysis.

       The Code provides:
      “Section 110.2 stopping of persons ....
      “(3) use of force. In order to exercise the authority conferred in Subsections (1) and (2) of this Section [to stop a person or a vehicle], a law-enforcement officer may use such force, other than deadly force, as is reasonably necessary to stop any person or vehicle or to cause any person to remain in the officer’s presence.”
      The accompanying commentary at pages 284-85 states in part:
      “(10) Use of Force. Subsection (3) authorizes the use of such force, other than deadly force, as is reasonably necessary to stop any person or vehicle, or to cause any person to remain in the officer’s company. Although it is not envisaged that force would have to be used frequently, it would be frustrating and humiliating to the officer to grant him an authority to order persons to stop, and then ask him to stand by while his order is flouted. Nor is it anomalous that this section authorizes force to compel the persons to stop but relies thereafter on the person’s cooperation. Certainly a person who has had to be forcibly stopped is unlikely to prove cooperative thereafter, but the officer may wish to immobilize such a person in order to check a description or identification, or simply to procure a period of time during which he can decide whether to make an arrest.”

       The information against the defendant charged him both as a principal and as an accessory. See footnote 1, supra.


text:
    John Drisdelle v. City of Hartford et al.
    Decided April 4, 1985

      John D. Liberator, in support of the petition.

      Robert E. Beach, Jr., in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 343, is denied.


text:
    Sorenson Transportation Company, Inc. v. State of Connecticut Floyd Hunter et al. v. State of Connecticut
    Decided April 4, 1985

      Robert T. Morrin, assistant attorney general, and Joseph I. Lieberman, in support of the petition.

      Jane W. Freeman, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 329, is denied.


text:
    In re Juvenile Appeal (85-3)
    Decided April 4, 1985

      Daniel V. Presnick, in support of the petition.

      Judith M. Earl, assistant attorney general, and Joseph I. Lieberman, attorney general, in opposition.
   The respondent mother’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 194, is denied.


text:
    Chester Orsini v. John Manson
    Decided April 4, 1985

      John R. Williams, in support of the petition.

      Carl Schuman, assistant state’s attorney, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is dismissed for lack of jurisdiction.


text:
    Paul Denby v. Voloshin Cadillac, Inc.
    Decided April 9, 1985

      Daniel V. Presnick, in support of the petition.

      Peter D. Clark, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 181, is dismissed.


text:
    Stanley V. Tucker v. American Insurance Company et al.
    Decided April 18, 1985

      Stanley V. Tucker, pro se, in support of the petition.

      Frederick D. Augenstern, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 397, is dismissed.


text:
    Elli Stigers v. Barry D. Stigers
    Decided April 18, 1985

      Ronald D. Japha, in support of the petition.

      David S. Rutkin, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Michael W. Holland et al. v. Reiko Crickard et al.
    Decided April 24, 1985

      Alan A. Rosa, in support of the petition.

      William C. Franklin, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 3 Conn. App. 346, is denied.


text:
    Michael Bushey v. Iseli Company et al.
    Decided April 24, 1985

      Edward T. Dodd, Jr., in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 370, is denied.


text:
    State of Connecticut v. Stephen P. Cassidy III
    Decided April 24, 1985

      Richard T. Meehan, Jr., in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 374, is denied.


text:
    State of Connecticut v. Norman E. Whitney
    Decided April 24, 1985

      Norman E. Whitney, pro se, in support of the petition.

      Carl Schuman, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Donna Durso v. Wayne Misiorek
    Decided May 3, 1985

      Douglas B. Sherman, assistant attorney general, and Joseph I. Lieberman, attorney general, in support of the petition.

      Mary E. Holzworth, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 212, is granted.


text:
    Margaret Sprague v. Commission on Human Rights and Opportunities et al.
    Decided May 3, 1985

      Walter A. DeAndrade, in support of the petition.

      Jonathan L. Gould, in opposition.
   The petition of the defendant Bunting and Lyons, Inc., for certification for appeal from the Appellate Court, 3 Conn. App. 484, is denied.


text:
    State of Connecticut v. Judy Cooley
    Decided May 3, 1985

      John H. Malone, assistant state’s attorney, in support of the petition.

      Joette Katz, public defender, and Laura A. Cahill, special public defender, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 410, is denied.


text:
    John Nann v. Maria Elena Pignatelli, Executrix (Estate of Constance Wilcox Pignatelli)
    Decided May 3, 1985

      Robert K. Walsh, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 74, is denied.


text:
    In re Juvenile Appeal (85-4)
    Decided May 22, 1985

      Barry J. Ward, in support of the petition.

      Judith M. Earl, assistant attorney general, and Joseph I. Lieberman, attorney general, in opposition.
   The mother’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 507, is denied.


text:
    Shelby Mutual Insurance Company v. Dennis Della Ghelfa et al.
    Decided May 22, 1985

      Wesley W. Horton, in support of the petition.

      Marc N. Needelman, in opposition.
   The defendant Zbigniew S. Rozbicki’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 432, is granted.


text:
    State of Connecticut v. Robert Formica
    Decided May 22, 1985

      Frank A. Iannotti, deputy assistant state’s attorney, in support of the petition.

      Cornelius J. Ivers, in opposition.
   The state’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 477, is denied.


text:
    State of Connecticut v. Christopher Sheehan
    Decided May 22, 1985

      Edward N. Lerner, in support of the petition.

      JamesE. Thomas, assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Patrick Bergin et al. v. Dorothy Bergin et al., Administrices (Estate of Elizabeth Bergin)
    Decided May 29, 1985

      Ivan M. Katz, in support of the petition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 3 Conn. App. 566, is denied.


text:
    Connecticut Bank and Trust Company v. Pamela Wilcox et al.
    Decided May 29, 1985

      David S. Grossman, in support of the petition.

      Mary E. Holzworth, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 3 Conn. App. 510, is granted.


text:
    Rita Haig Driessens v. Heliose Driessens et al.
    Decided May 29, 1985

      Rita Haig Driessens, pro se, in support of the petition.

      David J. Elliot and Kim M. Cooke, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 3 Conn. App. 677, is denied.


text:
    Deborah J. Isaac, Administrator (Estate of Reginald Isaac) v. Mount Sinai Hospital et al.
    Decided May 29, 1985

      Richard A. Bieder and Jill E. Clayton, in support of the petition.

      Lois B. Tanzer, Andrew J. O’Keefe and Louis B. Blumenfeld, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 3 Conn. App. 598, is denied.


text:
    Lucia Nessen v. Board of Education of the Town of Torrington
    Decided May 29, 1985

      Ronald Cordilico, in support of the petition.

      Gregory B. Nokes, in opposition.
   The plaintiffs petition for certification for appeal from the Appellate Court, 3 Conn. App. 630, is denied.


text:
    Rochelle Bartelstone et al. v. Blue Cross and Blue Shield of Connecticut, Inc.
    Decided June 4, 1985

      Leon M. Rosenblatt, in support of the petition.

      Lissa J. Paris, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 3 Conn. App. 627, is denied.


text:
    Carl Neri et al. v. Arthur B. Powers, Commissioner of Transportation, et al.
    Decided June 4, 1985

      James D. Reardon, in support of the petition.

      William J. Prensky, assistant attorney general, and Joseph I. Lieberman, attorney general, in opposition.

      Leo Nevas, in opposition.
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 3 Conn. App. 531, is denied.


text:
    Robert Salka et al. v. Kenneth Larson et al.
    Decided June 4, 1985

      Barry D. Guilano, in support of the petition.

      Jason E. Pearl, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court is dismissed.


text:
    Louise M. Smith v. Planning and Zoning Board of the City of Milford et al.
    Decided June 4, 1985

      Bruce L. Levin, in support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 550, is granted.


text:
    Elli Stigers v. Barry D. Stigers
    Decided June 4, 1985

      Abraham I. Gordon, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Town of Stratford v. Council 15, Local 407, AFSCME, et al.
    Decided June 4, 1985

      Richard P. Gilardi, town attorney, in support of the petition.

      Frank J. Raccio, in opposition.

      Michael J. Lombardo, assistant attorney general, and Joseph I. Lieberman, attorney general, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 590, is denied.


text:
    Wyngate, Inc. v. Bozak, Inc.
    Decided June 4, 1985

      Edward Morelli, in support of the petition.

      John C. Yavis, Jr., in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 595, is denied.


text:
    Hartford National Bank and Trust Company v. Florence I. Bowers et al.
    Decided June 7, 1985

      Dwight O. Schweitzer, in support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 656, is denied.


text:
    State of Connecticut v. Donald D. West
    Decided June 7, 1985

      Michael R. Sheldon and Stephen R. Samoski, certified legal intern, in support of the petition.

      William Domnarski, deputy assistant state’s attorney, in opposition.
   The defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 650, is denied.


text:
    Leo Derderian v. Elizabeth Derderian et al.
    Decided June 12, 1985

      John H. Parks, in support of the petition.

      Edward Pontacoloni, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 522, is denied.


text:
    Leo Derderian v. Elizabeth Derderian et al.
    Decided June 12, 1985

      Edward Pontacoloni, in support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 522, is denied.


text:
    Walter Johnson et al. v. Katherine Ivimey et al.
    Decided June 12, 1985

      John Ivimey and Katherine Ivimey, pro se, in support of the petition.

      Robert L. Fisher, Jr., in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 3 Conn. App. 392, is denied.


text:
    City Savings Bank of Bridgeport v. Andreas Dessoff et al.
    Decided June 19, 1985

      Richard G. Kent, in support of the petition.

      Ronald D. Japha, in opposition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 644, is denied.


text:
    Toby Messinger v. Andrew Laudano et al.
    Decided June 19, 1985

      Philip A. Wright, Jr., in support of the petition.

      Leonard H. Cheerman, in opposition.
   The defendants’ petition for certification for appeal from the Appellate Court, 4 Conn. App. 162, is denied.


text:
    Roseann O’Connor v. Brian O’Connor
    Decided June 19, 1985

      John J. Houlihan, Jr., in support of the petition.

      James O’Connor Shea and Roger Brewer, in opposition.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 4 Conn. App. 19, is granted.


text:
    Shelby Mutual Insurance Company v. Dennis Della Ghelfa et al.
    Decided June 25, 1985

      Paul R. Griffin, in support of the petition.
   The named defendant’s petition for certification for appeal from the Appellate Court, 3 Conn. App. 432, is granted.


text:
    James S. Greene v. Renee Greene
    Decided July 2, 1985

      James S. Greene, pro se, in support of the petition.
   The plaintiff’s petition for certification for appeal from the Appellate Court is dismissed.