text:
    State of Connecticut v. Henry Collette State of Connecticut v. Donato Telesco
    (11480)
    (11481)
    Peters, C. J., Healey, Shea, Santaniello and S. Freedman, Js.
    Argued January 14
    decision released April 1, 1986

      Martin Zeldis, assistant public defender, with whom, on the brief, was Joette Katz, public defender, for the appellants (defendants).

      Felix J. Springer, special assistant state’s attorney, with whom, on the brief, were Bruce P. Hudock and
      John M. Massameno, assistant state’s attorneys, and Susan E. Gill, deputy assistant state’s attorney, for the appellee (state).
   Santaniello, J.

After a joint jury trial, the defendants, Henry Collette and Donato Telesco, were each found guilty of committing burglary in the third degree in violation of General Statutes § 53E-103, and larceny in the second degree in violation of General Statutes (Rev. to 1981) § 53a-123. The trial court subsequently sentenced them both to ten years imprisonment. They now appeal claiming that the trial court erred (1) in denying their motions to suppress the in-court and out-of-court identifications made by Patricia Coombs, a victim of the crimes; (2) in refusing to dismiss the charges of larceny in the second degree on the ground that the state failed to prove that the value of the stolen property exceeded $500; (3) in commenting to the jury on facts in evidence, in violation of their rights to due process and a fair trial; and (4) in sentencing them on the basis of false information, in violation of their right to due process. We find no error.

The jury could reasonably have found that the defendants and another man broke into the home of Patricia and Richard Coombs in Stamford between 9 and 10 a.m. on August 18, 1981. They entered the home through a window and stole money, jewelry and other valuables. No one was in the house at the time, but Patricia Coombs pulled her car into the driveway in time to watch the three men exit the house one by one and get into their car. She immediately called the police and gave them a description of the suspects and their car. Within minutes, the Stamford police spotted a car in the vicinity of the robbery which met the description given by Coombs. The occupants of the vehicle attempted to avoid the police, but after a chase by car and later on foot, they were apprehended. To be sure that they had the right people, the police brought the three men over to the Coombs’ home for identification. Patricia Coombs viewed the men from her window and was certain that the defendants were two of the three men that had been at her home earlier.

I

The defendants first claim that the trial court should have suppressed the in-court and out-of-court identifications made by Coombs. “ ‘A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.’ ” State v. Hinton, 196 Conn. 289, 293, 493 A.2d 836 (1985); State v. Fullwood, 193 Conn. 238, 244, 476 A.2d 550 (1984). In order to succeed, “the defendant must prove (1) that the identification procedures were unnecessarily suggestive, and (2) that the resulting identification was not reliable in the totality of the circumstances.” State v. Perez, 198 Conn. 68, 73, 502 A.2d 368 (1985); State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985); State v. Hinton, supra, 292-93.

“We recognize that almost any one-to-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively ‘suggestive,’ but not all suggestive confrontations are unnecessary. State v. Hamele, 188 Conn. 372, 376-77, 449 A.2d 1020 (1982); State v. Middleton, 170 Conn. 601, 608, 368 A.2d 66 (1976).” State v. Aversa, 197 Conn. 685, 694, 501 A.2d 370 (1985). An immediate viewing of the suspect may be justified where “it [is] important for the police to separate the prime suspect gold from the suspicious glitter, so as to enable them ... to continue their investigation with a minimum of delay.” State v. Maturo, 188 Conn. 591, 596, 452 A.2d 642 (1982). Circumstances may also justify an immediate viewing because prompt on-the-scene confrontations are generally more reliable and allow an innocent party to be released quickly if no positive identification is made. State v. Aversa, supra, 694 n.3; State v. Hamele, supra; State v. Mallette, 159 Conn. 143, 149, 267 A.2d 438 (1970).

Under the circumstances of this case, the confrontation between Coombs and the defendants was reasonably necessary. The police had in their custody three men who generally met the description given by Coombs. It was entirely possible, however, that they were not the men who had burglarized the house. Indeed, as it turned out, Coombs was able to identify two of the men positively, but she stated with certainty that the third man presented to her was not one of the men she had seen earlier. The immediate viewing enabled the police to focus their investigation and gave them greater assurance that innocent parties were not unjustly detained.

Even if we were to assume that the confrontation was unnecessarily suggestive, under the totality of the circumstances, Coombs’ identification of the defendants was reliable. Coombs had the opportunity to view the defendants for several minutes while they left the house. Her view was unobstructed and she was only ten to fifteen feet away at the time. She directed her attention to each of the men as they came out and even attempted to ask them questions. Her description of the defendants to the police was accurate, the identifications were made within an hour of her first encounter with the defendants, and she was certain that the defendants were two of the three men who had been in her home that day. Moreover, Coombs did not identify the defendants just because they were presented as suspects. Three men were apprehended and shown to her, yet she positively identified only two. This indicates that she was “ ‘an unlikely candidate for subliminal seductions’ State v. Perez, supra, 75; State v. Ledbetter, 185 Conn. 607, 615, 441 A.2d 595 (1981); and that even if the police procedures were suggestive, they did not corrupt the overall reliability of her identifications. See State v. Theriault, 182 Conn. 366, 374-75, 438 A.2d 432 (1980).

II

The defendants next claim that the trial court erred in refusing to dismiss the charges of larceny in the second degree. They contend that the state failed to prove beyond a reasonable doubt that the value of the stolen items exceeded $500 as required by General Statutes (Rev. to 1981) § 53a-123 (a) (2), and, as a result, that it did not establish an essential element of the crime. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). At trial, the stolen property was displayed to the jury. It consisted of four watches, nine bracelets, seven rings, a pair of earrings, a passport wallet, a travel clock, fifty-one British pounds and some miscellany. To establish the value of the items taken from the Coombs’ home, the state called as its expert witness Henry Rebhun, an experienced professional jeweler and appraiser. Rebhun testified that the value of the items on the date of the burglary was approximately $2000. The defendants called Ben Messim, also a professional jeweler, to rebut Rebhun’s testimony. Messim appraised the items as having a total value of between $400 and $453. The defendants argue that the state failed to establish the essential element of value because Rebhun testified to the replacement value of the property and not to the fair market value.

In establishing the value of the stolen items, the state is required to prove “the market value of the property . . . at the time and place of the crime . . . .” (Emphasis added.) General Statutes § 53a-121 (a) (l). “Market value” has been defined as “ ‘ “the price that would in all probability . . . result from fair negotiations, where the seller is willing to sell and the buyer desires to buy.” ’ ” State v. Cochran, 191 Conn. 180, 190, 463 A.2d 618 (1983); O’Brien v. Board of Tax Review, 169 Conn. 129, 138, 362 A.2d 914 (1975). The determination of value is a question for the trier of fact. State v. Cochran, supra, 190-91. This court will not disturb the trier’s determination if, “ ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) State v. Scielzo, 190 Conn. 191, 197, 460 A.2d 951 (1983), quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).

The defendants rely on Rebhun’s remarks at two points during cross-examination to support their claim that he employed a replacement value rather than a market value standard. Defense counsel asked Rebhun whether he would buy the stolen items if offered to him for $200. Rebhun responded that he was not personally interested. From this, the defendants argue that had the market value of the goods actually been $2000, Rebhun would have jumped at the offer. Later during cross-examination, Rebhun was also asked how he appraised goods as an insurance adjuster. Rebhun answered: “Well, the insurance company, I also supply merchandise to the insurance company because I replace merchandise in case the merchandise is lost. The insurance company comes to me and wants to know [for] how much can I replace [sic] that particular merchandise.” (Emphasis added.) The defendants claim that his reference to replacing merchandise directly supports their contention that he improperly valued the stolen goods at replacement cost.

Reviewing Rebhun’s testimony as a whole, however, we conclude that the jury could reasonably have found that he appraised the items at market value. On direct examination, Rebhun testified as follows:

“Q. And what do you base you[r] appraisal value on?

“A. Comparison to what merchandise costs, and whether it’s used and how much depreciation it has. This is how we come upon the price the value is.

“Q. Is it also based upon what you think you can get as a fair price?

“A. That’s right.

* * *

“Q. Are these estimates based on the wholesale or retail value of these items?

“A. Retail.

“Q. These are what you feel you could get is that correct?

“A. Yes.”

Although he never used the statutory phrase “market value,” he did state that he had estimated the price according to what the items would bring on the retail market. Rebhun also stated that he had taken depreciation into consideration, something an appraiser would not do if he were making his valuations on the basis of replacement cost. The jury could reasonably have inferred that his use of the word “replace” on cross-examination was made in reference to his role as an insurance appraiser, not to his method of valuation of the stolen property. See State v. Paoletto, 181 Conn. 172, 183, 434 A.2d 954 (1980). As to his refusal to buy the goods, there was no indication that the offer was declined because the value of the goods was less than the price offered.

We therefore conclude that Rebhun’s testimony gave the jury a reasonable basis upon which it could find that the market value of the stolen property exceeded $500. The jury was free to choose between Rebhun’s and Messim’s appraisals. See State v. Cofone, 164 Conn. 162, 165, 319 A.2d 381 (1972). Thus, the state met its burden of establishing the elements of the crime of larceny in the second degree and the trial court did not err in refusing to dismiss the larceny charges against the defendants.

Ill

The defendants also claim that during its charge to the jury the trial court unfairly commented on facts in evidence. They argue that the court through its comments erroneously directed the jury to find that the defendants were two of the three men who had entered the Coombs’ home, that they had been there without permission, and that a burglary had occurred.

“The trial court may, in its discretion, make reasonable comments on the evidence. State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117 (1976). Such comments, however, must not advise the jury on how to decide the case; State v. Storlazzi, 191 Conn. 453, 465, 464 A.2d 829 (1983); but may merely give the jury a fair presentation of the issues. See State v. Schoenbneelt, supra, 124.” State v. Taylor, 196 Conn. 225, 232, 492 A.2d 155 (1985). “The ultimate test of the charge is whether, read in its entirety, it fairly presents the case to the jury so that no injustice is done.” State v. Storlazzi, supra, 466; State v. Mullings, 166 Conn. 268, 274, 348 A.2d 645 (1974). Individual comments are not to be judged in isolation from the charge as a whole; State v. Moss, 189 Conn. 364, 367, 456 A.2d 274 (1983); State v. Reed, 174 Conn. 287, 305, 386 A.2d 243 (1978); and should be examined not in a vacuum, but in the context of the factual issues raised at trial. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982).

The defendants claim that the court’s instruction for the jury to examine “the totality of the circumstances surrounding the confrontation of Mrs. Coombs and the accused” directed the jury to find that the defendants were the men Coombs had seen leaving the house. Examining this statement in the context of the entire charge, however, we conclude that the court was merely explaining to the jurors that they must carefully weigh the reliability of Coombs’ identification. Granted, the court did verbally equate the defendants with the persons Coombs had seen, but the court in its charge made it clear that it was up to the jury to decide the question of identity.

Next, the defendants claim that the court’s statement that “[n]o one had license to be in [the home]” withdrew from the jury’s consideration the essential element of burglary that the entry be unlawful. The court in this instance was commenting on the uncontradicted testimony of Patricia Coombs that she had not given anyone permission to enter her home. The court did not, however, withdraw the issue from the jury’s determination. Immediately before making the challenged statement, the court explained that it was the state’s burden to prove beyond a reasonable doubt that the defendants entered the home unlawfully and then it emphatically stated that “[y]ou [, the jury,] review the evidence about that.”

The defendants also claim that the court practically directed a verdict against them on the burglary charge when it instructed: “I don’t think there is really any dispute, a burglary occurred.” The court was at this point diverting the jury’s attention away from the burglary issue, which was virtually uncontested at trial, and toward the identification question, the key to the whole case. This type of emphasis and direction by the trial court was, under the circumstances, appropriate. See State v. Taylor, supra, 232. The court did not withdraw from the trier the issue of whether a burglary had occurred. The court afterwards set out the elements of burglary and told the jury that it was the state’s responsibility to prove those elements beyond a reasonable doubt. Overall, we conclude that, read in its entirety, the court’s charge fairly presented the case to the jury.

IV

The defendants’ remaining claim is that they were denied their constitutional right to due process when the trial court considered false information in determining their sentences. At the sentencing hearing, the court reviewed the defendants’ presentence investigation reports, commented on their criminal records and gave its overall impressions of their character. The court sentenced them to five years imprisonment on each count, to be served consecutively, for a total effective sentence of ten years. The defendants’ claim focuses on the following remarks made by the court during the sentencing hearing: “I’m satisfied as well, that you gentlemen have perpetrated a fraud on the Court. [You have] a public defender . . . [a]nd I think [Mr. Telesco] even commented . . . that the gold around your neck would have paid for a lawyer.” The defendants argue that the allegation of fraud was completely unfounded and that the court improperly sentenced them on the basis of this information.

We have recently stated that “if a sentence is within statutory limits it is not generally subject to modification by a reviewing court. United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir. 1985); State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982). ‘A sentencing judge has very broad discretion in imposing any sentence within the statutory limits . . . United States v. Sweig, 454 F.2d 181, 183-84 (2d Cir. 1972).” State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). The court may “appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [it] may consider or the source from which it may come.” United States v. Tucker, 404 U.S. 443, 446, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972). Due process requires, however, that information be considered only if it has some minimal indicium of reliability. United States v. Baylin, 696 F.2d 1030, 1040 (3d Cir. 1982); State v. Huey, supra, 127; see also State v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985). A court should refrain from comments that find no basis in the record. Nonetheless, the mere reference to information outside of the record does not require a sentence to be set aside unless the defendant shows: (1) that the information was materially false or unreliable; and (2) that the trial court substantially relied on the information in determining the sentence. United States v. Ibarra, 737 F.2d 825, 827 (9th Cir. 1984); United States v. Lemon, 723 F.2d 922, 933 (D.C. Cir. 1983); United States v. Powell, 487 F.2d 325, 328 (4th Cir. 1973).

Because the defendants have failed to establish that the information was materially false and that it had a substantial effect on the sentences imposed, we conclude that they were not denied their right to due process. The defendants have presented no support for their claim that the allegation of fraud was untrue. We cannot verify whether the defendant Telesco’s comment about gold jewelry was ever made because the statement does not appear in the record. Other than the fact that the defendants are represented by the public defender’s office in this appeal, they have made no showing that they were at the time of trial eligible for public representation. On whether the court substantially relied on this information in sentencing, the record shows that the primary concern of the trial court was the defendants’ history of criminal offenses. The remark concerning fraud was, in context, more of an admonishment than a basis for sentencing. The fact that both defendants were sentenced to ten years imprisonment, terms close to the statutory maximum, does not automatically compel the conclusion that the alleged fraud was a substantial basis for the sentences.

There is no error on either appeal.

In this opinion the other judges concurred.

       General Statutes § 53a-103 (a) provides: “A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein.”

       General Statutes (Rev. to 1981) § 53a-123 (a) provides: “A person is guilty of larceny in the second degree when: (1) The property consists of a motor vehicle, (2) the value of the property or service exceeds five hundred dollars, or (3) the property, regardless of its nature or value, is taken from the person of another.”

       “The constitutional test for reliability requires the trial court to consider ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Theriault, [182 Conn. 366, 373-74, 438 A.2d 432 (1980)].” State v. Hinton, 196 Conn. 289, 295-96, 493 A.2d 836 (1985).

       Rebhun testified on the value of each item. The following is a breakdown of his estimates: woman’s Timex watch, $20-$35; Longines watch, $75-$100; Seiko watch, $70-$75; Wachman watch, $65-$70; silver bracelet with charms, $250; six silver bangle bracelets, $100; silver bracelet, $75; gold-filled bracelet, $25; sapphire ring, $120; two silver rings, $100; silver twist ring, $20; eight-section twist ring, $125; aquamarine ring, $90; sapphire guard ring, $125; silver and turquoise earrings, $35; silver money-clip, $50; passport wallet, $50; travel clock, $50; miscellaneous items, $200; 51 British pounds, based on a $4 exchange rate, $200.
      Messim also appraised some of the items individually. His estimates were: Timex watch, $5; Longines watch, $10; Seiko watch, $10; Wachman watch, $10; one silver bracelet, $50; seven bangle bracelets, claiming that they were not silver, no value; sapphire ring, claiming that it was synthetic, $25; one silver ring, $7—$8; enamelled silver ring, $10; silver twist ring, $8-$10; butterfly ring, $5-$10; eight-section twist ring, $8—$10; silver ring, $10—$15; gold ring, $30; earrings, $5; money clip, $5; passport wallet, $50; travel clock, no value; miscellaneous items, $40; 51 British pounds, based on a $1.84 exchange rate, $93.

       General Statutes § 53a-121 (a) (1) provides: “For the purposes of this part, the value of property or services shall be ascertained as follows: (1) Except as otherwise specified in this section, value means the market value of the property or services at the time and place of the crime or, if such cannot be satisfactorily ascertained, the cost of replacement of the property or services within a reasonable time after the crime.”

       The defendants concede that they did not take an exception to the court’s charge at trial. Ordinarily, the failure to raise the claim below would restrict our review on appeal to consideration of plain error. Practice Book § 3063. We consider the defendants’ claim insofar as it implicates their constitutional rights to a jury trial and to due process of law in light of the assertion that the court effectively directed the jury on some of the factual issues by virtue of its comments on the evidence. State v. Evans, 165 Conn. 61, 71, 327 A.2d 576 (1973); see also State v. Taylor, 196 Conn. 225, 230, 492 A.2d 155 (1985).

         The court’s charge on this issue was as follows: “You will examine what was her ability to make an observation. Was there adequate opportunity? What were the lighting conditions? You examine the totality of the circumstances surrounding the confrontation of Mrs. Coombs and the accused. All three that she has spoken about, coming down the steps of her house, what she said, a brilliant sunny day or something like that. You have pictures taken that day in the driveway. You have evidence to examine. What were the circumstances? Satisfy yourself, you must satisfy yourself. Inquire of that substance and determine whether you are satisfied that the identification of the accused is the, is done by proof beyond a reasonable doubt . . . .” (Emphasis added.)

       Set in context, the court’s charge was: “This is the essence of burglary in every degree, and unless it is proved by the State beyond a reasonable doubt, there can be no conviction. To establish burglary the State must prove that the defendant entered unlawfully or that regardless of how an accused entered, he remained there unlawfully. To make either the entry or the remaining unlawful within this requirement it must be shown that they did so when not licensed or priveleged [sic] to do so. You review the evidence about that. No one had license to be in there. ” (Emphasis added.)

       The court charged: “That is not the case in this situation. Clearly the claim in this case, and I don’t think there is really any dispute, a burglary occured [sic]. That’s been stated to you during the course of argument, during the course of the trial. That does not relieve me of the burden of explaining burglary to you. What I said about unlawful entry or remaining is summed up in our statute .... The person enters or remains unlawfully in or upon a premises when the premises at the time of such entry or remaining are not open to the public and the actor is not otherwise licensed or priveleged [sic] to do so. You are bound by that statutory definition. . . .” (Emphasis added.)

       The court’s remarks, set in context, were as follows: “Now in respect to the sentences to be imposed, The Court, is not unaware of the records of the accused. I note from the PSI’s that certainly Mr. Telesco has just completed a term of eight (8) to sixteen (16) years. And, without paying any concern whatsoever for his three other pending cases in Part A; here we have a gentleman who’s back on the street. Equips himself with a rented vehicle, which he switches. Occupies that car with other men. Outfits himself with a police scanner. And is identified coming out of a citizen’s home, which has been intruded upon. Intruded upon by these gentlemen and their companion. I am not unmindful from his absence from the trial. And his involvement in that escapade. Having to be returned here to Court. I’m not unmindful of his tumultuous upbringing. But the people are demanding their punishment be given to people who commit the acts that this gentleman committed.
      “His defense and his statement in the P.S.I., for the Sentence Review Division, and for anybody else, as far as this Court is concerned who heard the case, has seen the gentleman, has seen the witnesses, the position that they maintain in these PSI’s is ridiculous. It flies in the fact [sic] of reason. And it would take a very naive judge to understand, feel, that you were not deeply involved in this act.
      * *
      “The other fellow, he’s got a suspended sentence over his head. And I have read his PSI. And I have read the previous PSI. And I think if I were Judge Meehan at that time I probably would have felt that he was entitled to a break. He had made a change in his life at that point. And I don’t know if I would have given the same term, but I think I would have given him a second chance. He had been, otherwise, not too bad. But he’s bent on this life. He and this fellow have gotten together. And they want to live that life. I’m satisfied as well, that you gentlemen have perpetrated a fraud on the Court. As having a public defender and a special public defender. Not unmindful of the—Audi think you even commented during the course of your failure to appear at trial, that the gold around your neck would have paid for a lawyer. That was Mr. Telesco. Your appearance here, and your mode of existence in society is to get away with whatever you can get away with. You are both frauds. You are both people that the society doesn’t need to have around. You should be isolated. You should be removed from the community, both of you, at this point. No person, no person should have the likes of you in their home. Going through their personal effects. And just in case you haven’t heard it before, you heard it today.” (Emphasis added.)


source: Caselaw Access Project

author: Arthur H. Healey, J.

license: Public Domain

text:
    State of Connecticut v. Grady Cobb
    (11652)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.
    Argued December 12, 1985
    decision released April 1, 1986

      Eugene J. Riccio, public defender, with whom, on the brief, was Suzanne Zitser, assistant public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Henry J. Lyons, assistant state’s attorney, for the appellee (state).
   Arthur H. Healey, J.

The defendant, Grady Cobb, was convicted by a jury of assault in the first degree, in violation of General Statutes § 53a-59 (a) (l). He was sentenced to a term of not less than five nor more than ten years. He appeals from the judgment of conviction and claims that the trial court erred in its instructions to the jury on (1) the defendant’s failure to testify, and (2) the essential elements of the offense charged. We find no error.

The jury could reasonably have found the following facts relevant to this appeal: At approximately 6 p.m. on May 12,1981, the defendant and the victim, Ruben Rodriguez, were struggling for a gun which both were clutching in their clasped hands above their heads. At the same time, off-duty Stamford police officer Gary Cosby and his friend, Rodney Bass, were driving on Greenwich Avenue in Stamford, and observed the two men engaged in a struggle. Cosby stopped his vehicle on the side of the street. A shot was fired from the weapon. It appeared to Bass that the defendant was in control of the weapon and that Rodriguez had been backing away from the defendant. More shots were fired. The defendant and Rodriguez fell on a stairway and the defendant stood up and fired a shot in the direction of Rodriguez, who was still lying on the stairs. The defendant then walked away from the scene. Cosby went to the aid of the victim while Bass called the police. Cosby knew both the victim and the defendant, and both Cosby and Bass made out-of-court and in-court identifications of the defendant. A medical doctor testified that she examined Rodriguez on the night of the shooting and that a bullet had entered his body near his heart. She considered the injury to be a “very serious physical injury.” Neither the defendant nor the victim testified at trial. The defendant did not call any witnesses in his defense.

The defendant first claims that the court erred in instructing the jury on the defendant’s failure to testify because the instruction did not comport with General Statutes § 54-84 (b). The statute provides in part: “Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.” The instruction given to the jury by the trial court stated: “And in fairness to this defendant, you should draw no inference from the fact that he did not take the stand and testify in his own behalf.”

“Our analysis of this claim of error must proceed in three stages. Is the defendant entitled to raise this claim when he did not raise it at trial? If this claim is properly here, was the instruction given by the trial court erroneous? If the instruction was in error, was the error harmless?” State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985). We initially note that the defendant did not except at trial to the charge as given. Nevertheless, because § 54-84 (b) “serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial”; id.; and because it is “plain error for a trial judge not to comply with the mandate of General Statutes § 54-84 (b)”; State v. Tatem, 194 Conn. 594, 595, 596, 483 A.2d 1087 (1984); we will review the claim.

The language of the instruction given by the trial court was not in literal compliance with § 54-84 (b) and it was error for the trial court not to give the charge in the statutory language. “No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must . . . use the unique power of the jury instruction to reduce that speculation to a minimum.” Carter v. Kentucky, 450 U.S. 288, 303, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981); see State v. Tatem, supra, 599. Our legislature has prescribed § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum. Although we conclude that it was error for the trial court not to follow the statute as worded when instructing the jury, that conclusion does not end our analysis.

The third prong of our inquiry is whether the error in the giving of the § 54-84 (b) instruction was nevertheless harmless. “An erroneous instruction, even of constitutional dimension, is harmless if, viewed in the context of the charge as a whole, there is no reasonable possibility that the jury were misled. State v. Hines, 187 Conn. 199, 209, 445 A.2d 314 (1982).” State v. Carrione, 188 Conn. 681, 685, 453 A.2d 1137 (1982); State v. Tatem, supra, 599. In this case the jury was told that it could draw “no inference” from the defendant’s failure to testify. “An instruction prohibiting any inference would also preclude an unfavorable inference.” State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985); cf. State v. Tatem, supra. Because the jury was instructed that “no inference” may be drawn from the fact that the defendant did not testify, “the substantive meaning of the statutory requirement was conveyed.” State v. Marra, supra; see State v. Carrione, supra, 686. The jury was also instructed that “an accused person is not obliged to take the witness stand in his own behalf” and that the defendant is not “require[d] ... to prove his innocence” but that it is the “burden of the state to prove his guilt beyond a reasonable doubt.” The error of the trial court in not following the prescribed statutory language was, therefore, harmless in the context of this case.

The defendant’s second claim is that the trial court erred in its instructions to the jury on the essential elements of the offense charged. The defendant concedes that exceptions were not taken to all of the instructions. Despite the defendant’s failure to except to the trial court’s instructions on all the matters upon which he now seeks review, we will review his claim on appeal under the second “exceptional circumstances” prong of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). The alleged failure of the trial court to submit to the jury the essential elements of the offense charged would implicate the fundamental constitutional rights of the defendant. See State v. Griffin, 175 Conn. 155, 162-63, 397 A.2d 89 (1978).

The defendant contends that the jury charge on the elements of the offense presented such a “confused pattern for the jury to untangle” that the charge contravened his right to know the nature of the accusations against him, his right to due process, and his right to a fair trial under both the federal and state constitutions.

In reviewing a jury charge, we look to the charge as a whole to determine whether it “ ‘gave the jury a clear understanding of the elements of the crime charged and the proper guidance to determine if those elements were present.’ State v. Avila, 166 Conn. 569, 574, 353 A.2d 776 (1974).” State v. Gabriel, 192 Conn. 405, 416, 473 A.2d 300 (1984). “The court’s instructions on the offense charged must include every element of that offense. 75 Am. Jur. 2d, Trial § 713; see annot., ‘Duty in instructing jury in criminal prosecution to explain and define offense charged,’ 169 A.L.R. 315.” State v. Kurvin, 186 Conn. 555, 560-61, 442 A.2d 1327 (1982).

A review of the instructions given to the jury by the trial court is necessary to our disposition of this claim. The trial court began its discussion of the law as it related to the facts of this case by reading the information which charged the defendant with a violation of General Statutes § 53a-59 (a) (1). The court then proceeded to read § 53a-59 (a) (3) and expanded on the meaning and significance of “reckless” in subsection (3). The court concluded this instruction by telling the jury that it could also consider the lesser included offenses of assault in the second or third degree. At this point, the assistant state’s attorney requested a short recess.

After the recess and a conference with the attorneys, the court explained that it was “going to start from the beginning” and reread the information and the statute. The jury was read the correct statutory section and the trial court added certain statutory provisions of assault in the second and in the third degree. The court then concluded its charge and the jury was excused, but deliberations did not begin at that time. The assistant state’s attorney called to the court’s attention that he did not recall if the court charged on certain definitions or on intent. The defense counsel agreed with the state’s attorney that certain definitions were not given because the previous definitions “used [in] the incorrect subsection . . . went by the boards at that point because you informed the jury to disregard that subsection or that charge and, therefore, I don’t think there is any definition at this point.” Defense counsel also suggested that the instructions on assault in the first degree had not been given fully. Defense counsel also reminded the trial court that it “didn’t read the first two subsections of assault three” although it had read subsection (3) of § 53a-59 (a). In addition, defense counsel stated that the court should instruct on his requested charges on reckless endangerment, breach of the peace, and disorderly conduct, and that it should give a Secondino charge. Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). Defense counsel excepted to the court’s ruling denying a complete incorporation into the jury charge of his requests to charge. The jury, which had not yet deliberated, was brought back into the courtroom and was correctly instructed on the elements of assault in the first degree, including intent. The court also correctly defined certain relevant terms such as “serious physical injury,” “deadly weapon” and “dangerous instrument.”

After the luncheon recess, the alternates were discharged and deliberations commenced. The jury, after approximately one hour of deliberations, submitted a question to the court which requested “further clarification of the distinctions between first and second degree assault.” The court again read the information and correctly instructed the jury on the elements of assault in the first degree and it also defined assault in the second degree. After the jury was excused, defense counsel informed the court that it had “left out the third part dealing with reckless[ness].” The court, after this request, gave further instructions to the jury. The jury retired and, after further deliberations, returned a verdict of guilty of assault in the first degree.

The jury charge, viewed in its totality, provided the jury with the essential elements of the offense charged. Although the first charge was erroneous, as the state concedes, the supplemental instructions correctly and adequately charged on assault in the first degree in violation of § 53a-59 (a) (1) and thus effectively cured the initial charge. State v. McCall, 187 Conn. 73, 86, 444 A.2d 896 (1982); State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978). We continue to disapprove of the reading of an entire criminal charge when only a portion is applicable. State v. Carter, 189 Conn. 631, 646, 458 A.2d 379 (1983). Correct supplemental instructions given before any deliberations began, however, cured any error that might have resulted from the earlier instructions. The second and correct charge to the jury specifically pointed out that “recklessness is not an element” of “[ajssault one, as you are concerned with the offense for which the state has charged . . . .” The transcript indicates that the jury was instructed on an erroneous section involving recklessness after defense counsel requested that the court charge on recklessness. If defense counsel did not approve of this portion of the charge, then he should have alerted the court to his previous remarks and suggested whatever curative language he deemed most appropriate. State v. Jones, 193 Conn. 70, 88, 475 A.2d 1087 (1984). An exception at this point, especially under the circumstances of this case, would have served the important function of alerting the trial court to what defense counsel believed was erroneous while there was time to correct it without ordering a retrial. State v. Jones, supra. While the failure to except will not, because of the constitutional dimensions of the defendant’s claim, prevent a review on appeal, it is an indication that the defendant accepted the charge on recklessness as correct. State v. Jones, supra, 89. In addition, the court instructed the jury that in the event that it found the defendant not guilty of assault in the first degree, it should consider whether he was guilty of one of the less serious crimes. Because the defendant was found guilty of assault in the first degree, the lesser included offenses were not “even considered by the jury.” State v. Johnson, 185 Conn. 163, 176 n.2, 442 A.2d 858 (1981).

We conclude that the essential elements of the crime charged were correctly and adequately presented to the jury and that the defendant therefore cannot prevail on this claim of error.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) (1) provides: “assault in the first degree: class b felony, (a) A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       We recognize that in State v. Marra, 195 Conn. 421, 489 A.2d 350 (1985), the defendant filed two requests to charge on the defendant’s failure to testify. One request to charge included the language at issue in that case: “ ‘No inference or taint should be derived from [the defendant’s] failure to testify.’ ” Id., 442. Although the defendant in the present case did not file a request to charge and was thus entitled to the instruction of General Statutes § 54-84 (b), our analysis of the harmlessness of the error does not differ from that in State v. Marra. See State v. Sinclair, 197 Conn. 574, 582, 500 A.2d 539 (1985).

       The defendant claims that assault in the second degree; General Statutes § 53a-60 (a) (1); is not a lesser included offense of General Statutes § 53a-59 (a) because it does not meet the criteria of State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). We need not reach this issue. The defendant did not object to this particular portion of the instructions. “Because the defendant was found guilty of the original offense charged, the lesser included offense was not even considered by the jury.” State v. Johnson, 185 Conn. 163, 176 n.2, 440 A.2d 858 (1981).

       A fair reading of the transcript indicates that defense counsel was referring to General Statutes § 53a-60 (a) (3) which provides that “(a) [a] person is guilty of assault in the second degree when ... (3) he recklessly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.”


author: Peters, C. J.

text:
    Laurence R. Smith, Jr. v. Hevro Realty Corporation et al.
    (12496)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued February 13
    decision released April 15, 1986

      DavidE. Wyskiel, with whom, on the brief, was Alan M. Solomon, for the appellant (defendant Carpet & Furniture Clearance Center, Inc.).

      John C. Yavis, Jr., with whom was David C. Smith, for the appellee (plaintiff).
   Peters, C. J.

The principal issue on this appeal is whether the defendant Carpet & Furniture Clearance Center, Inc. (hereinafter Carpet Center), effectively exercised its right of first refusal to purchase a piece of commercial property. The plaintiff, Laurence R. Smith, Jr., brought an action to quiet title to the property, which he had contracted to purchase from the defendant Hevro Realty Corporation (hereinafter Hevro), and to compel Hevro to convey the property to him under the terms of that contract. He joined as defendants both Hevro and Carpet Center, a rival claimant to the property under the terms of a right of first refusal it had received from Hevro. Carpet Center counterclaimed against the plaintiff alleging slander of title and tortious interference with legitimate business expectations, and cross claimed against Hevro alleging breach of its lease. The trial court, Susco, J., rendered judgment for the plaintiff, quieting title to the property in Hevro and ordering Hevro to convey that property to the plaintiff under the terms of their purchase and sales contract. The court also rendered judgment against Carpet Center on its counterclaims and cross claims. From this judgment Carpet Center appeals.

The underlying facts are undisputed. On January 3, 1980, Hevro, the owner of a commercial building in Newtown, agreed to lease a portion of the building to Carpet Center for a term of two years, with renewal options extending the term by an additional eight years. The written lease agreement executed by the parties contained a clause granting Carpet Center “a right of first refusal” to purchase the property during the pendency of the lease. Under the terms of this clause, if Hevro decided to sell the property and found a bona fide purchaser ready to buy it, Hevro was obligated to give Carpet Center immediate notification of the terms of the proposed sale. Carpet Center then had the right, valid for thirty days, to purchase the property on the same terms as those negotiated with the third party purchaser.

In June, 1983, Hevro entered into a conditional contract, subject to Carpet Center’s right of first refusal, to sell the property to the plaintiff Smith for a total purchase price of $400,000. Pursuant to the terms of this contract, Smith paid a $40,000 deposit to Hevro at the time he signed the contract, and agreed to pay the balance of the purchase price at the closing. On June 24,1983, Hevro’s attorney sent a notice to Carpet Center, informing it of the proposed purchase by Smith, enclosing a copy of the conditional sales contract containing the terms and conditions agreed to by Hevro and Smith, and giving Carpet Center thirty days in which to exercise its right of first refusal and purchase the property “on the same terms and conditions.” The notice specified that, to be effective, Carpet Center’s exercise of its “option” had to be in writing, unconditional, and “postmarked no later than 12:00 midnight July 24,1983.” In response to this notice, Carpet Center’s attorney sent a letter to Hevro, indicating that Carpet Center was “exereis[ing] his [sic] Option to Purchase upon the same terms and conditions as set forth in the [Hevro-Smith] Contract of Sale.” This letter went on to request Hevro to send Carpet Center its “proposed Contract of Sale.” No deposit accompanied this letter. Although postmarked July 22, 1983, the letter was not received by Hevro until August 6 or 7, 1983.

On August 9, 1983, Hevro’s attorney wrote to both Smith and Carpet Center. In his letter to Smith, the attorney informed him that Carpet Center had “exercisfed] the Right of First Refusal,” enclosed a copy of Carpet Center’s letter of exercise, and returned Smith's deposit. Smith subsequently notified Hevro that he considered Carpet Center’s exercise invalid. Smith therefore returned the check to Hevro and demanded that Hevro perform under its contract with him.

In his contemporaneous letter to Carpet Center, Hevro’s attorney stated that he considered Carpet Center’s exercise of its “option” to have been incomplete because it had not been signed by a “properly authorized Corporate Officer,” and because it had not included a $40,000 deposit. Hevro’s attorney gave Carpet Center until August 17,1983, to correct these deficiencies “or the exercise of the option [would] be considered defective and void the rights of [Carpet Center] to purchase.”

On August 16,1983, counsel for Carpet Center called Hevro’s attorney, again requesting a new contract, and indicating that Carpet Center would not make the $40,000 deposit until it had received such a contract. Hevro’s attorney refused this request, claiming that a new contract was unnecessary. He then informed Carpet Center that he was adopting a “hands off policy” concerning the relative rights of Smith and Carpet Center to purchase the property.

Subsequently, Carpet Center recorded a caveat in the Newtown land records, indicating that it had “exercised its Right of First Refusal for the purchase” of the property in question. Several days later, the plaintiff recorded his contract with Hevro in the same land records. On September 28,1983, the plaintiff brought the present action.

On appeal from the judgment against it, Carpet Center raises three claims of error. It claims that the trial court erred: (1) in finding that Carpet Center’s exercise of its right of first refusal was ineffective; (2) in finding that Hevro did not break its lease with Carpet Center when it executed a conditional sales contract with Smith; and (3) in ordering Hevro to convey the property to Smith under the terms of their sales contract. We find no error.

I

Our evaluation of Carpet Center’s initial claim of error requires us to undertake a two-step analysis. We must first determine the nature of the right which Carpet Center possessed. We must then decide whether that right was effectively exercised.

By the terms of the relevant lease provision, Hevro granted Carpet Center a right of first refusal to purchase the property on the same terms as those proposed by a third party purchaser. This right was conditioned on the occurrence of two events: Hevro’s desire to sell the property, and its receipt of an acceptable offer from a bona fide purchaser. Unlike an option, this right of first refusal did not, prior to the fulfillment of these conditions, constitute an offer to sell by Hevro or create in Carpet Center the power to compel a sale by acceptance. New Haven Trap Rock Co. v. Tata, 149 Conn. 181, 186, 177 A.2d 798 (1962); 1A Corbin, Contracts (1963) § 261, p. 468. It merely required Hevro, “before it [sold] the [property] to some third party, to offer it to [Carpet Center] on the same terms it [was] willing to accept from the third party.” Ross v. Shawmut Development Corporation, 460 Pa. 328, 335, 333 A.2d 751 (1975); see 2 Friedman, Leases (2d Ed. 1983) § 15.6, p. 804; 1A Corbin, supra, § 261, pp. 473-74.

Once Hevro notified Carpet Center of the receipt of Smith’s offer, however, Carpet Center’s right of first refusal ripened into an option. Texaco, Inc. v. Rogow, 150 Conn. 401, 404-405 n.2, 190 A.2d 48 (1963); Saraceno v. Carrano, 92 Conn. 563, 565, 103 A. 631 (1918); Imperial Refineries Corporation v. Morrissey, 254 Iowa 934, 940, 119 N.W.2d 872 (1963); Ross v. Shawmut Development Corporation, supra, 336; Crowley v. Texaco, Inc., 306 N.W.2d 871, 873 (S.D. 1981); Bricker v. Walker, 139 Vt. 361, 364, 428 A.2d 1129 (1981). An option is a continuing offer to sell, irrevocable until the expiration of the time period fixed by agreement of the parties, which creates in the option holder the power to form a binding contract by accepting the offer. 1A Corbin, supra, § 259, pp. 459-61; 1 Williston, Contracts (3d Ed. 1957) § 61A, pp. 198—99; annot., 71 A.L.R.3d 1201, 1205 (1976). Hevro’s letter of notice to Carpet Center, when combined with the lease provision on which it rested and the contract with Smith to which it referred, constituted an offer, irrevocable for thirty days, to sell the property to Carpet Center on the same terms and conditions as those agreed to by Smith. The trial court was therefore correct in concluding that Carpet Center’s right to purchase matured into an option once Carpet Center received notice of the Smith offer from Hevro.

Having decided that Carpet Center possessed an option to purchase the Hevro property, we must next determine whether its exercise of that option was effective. The trial court concluded that the exercise was ineffective for two reasons: because Carpet Center’s notice of acceptance was untimely, and because this acceptance failed to comport with the terms of the offer. We shall examine each of these grounds separately.

A

The trial court found that Carpet Center’s exercise of its option was not timely because it was not received by Hevro until after the expiration of the thirty day option period. In the provision of the lease that granted Carpet Center its right to purchase, the parties agreed that, to be effective, a reply to notice of an offer had to be made “within thirty (30) days of the date of the mailing of [the notice].” When Hevro notified Carpet Center of the Smith offer on June 24, 1983, however, Hevro informed Carpet Center that “[t]he Lessee’s option is exercisable pursuant to the terms of the existing lease in writing mailed . . . and postmarked no later than 12:00 midnight July 2U, 1983. ” (Emphasis added.) Carpet Center’s letter of acceptance was in fact postmarked July 22, 1983, two days before the thirty day deadline, even though it was not received by Hevro until August 6 or 7, 1983.

In considering whether an offeree has exercised a right of acceptance in timely fashion, courts have fashioned rules that differ from those that govern acceptance of a revocable offer. Unless the parties have agreed to the contrary, acceptance under an option contract is not effective until it is actually received by the offeror. Cities Service Oil Co. v. National Shawmut Bank, 342 Mass. 108, 110 n.1, 172 N.E.2d 104 (1961); Salminen v. Frankson, 309 Minn. 438, 440, 440 n.2, 245 N.W.2d 839 (1976); 1 Restatement (Second), Contracts § 63 (b) (1979); 1A Corbin, supra, § 264, p. 521. In this case, the terms of the underlying lease were consistent with the general rule requiring acceptance of an option to be received, but, as Carpet Center argues, the terms of the letter of notification indicated an intent by Hevro, as offeror, to consider Carpet Center’s acceptance effective upon mailing. Hevro’s letter would appear to evidence a special agreement making Carpet Center’s acceptance timely.

The trial court’s finding that the acceptance was not timely recognized that Hevro’s letter of June 24,1983, might have “waived the time limitation contained in its lease.” The trial court concluded, however, that Hevro’s waiver was not binding on the independent rights of the plaintiff Smith to have Carpet Center exercise its option within the time limits specified in the lease. The court did not undertake any further exploration of the relationship between Hevro’s conduct and the plaintiff’s rights. We will not resolve this issue and will assume, arguendo, that Carpet Center’s exercise of its offer was not untimely.

B

The trial court also found that Carpet Center failed to exercise its option in accordance with the terms of the agreement when it failed to tender a deposit of $40,000 either at the time of its formal acceptance of the option or within a reasonable time thereafter. The governing provisions of the lease created a right of first refusal for Carpet Center on the same terms and conditions as those proposed by a bona fide purchaser. One of the terms of the Hevro-Smith contract called for the payment of a $40,000 deposit by Smith “upon the signing of this Contract,” with the balance due “on delivery of the deed.” The crucial question of interpretation is whether, as the trial court found, these agreements required Carpet Center to tender a deposit at the time of its exercise of its option or whether, as Carpet Center maintains, this deposit was only due at the time that a contract of sale was tendered by Hevro to Carpet Center.

The principles that govern the interpretation of an option contract are well settled. To be effective, an acceptance of an offer under an option contract must be unequivocal, unconditional, “and in exact accord with the terms of the option.” 1A Corbin, supra, § 264, p. 523; Department of Public Works & Buildings v. Halls, 35 Ill. 2d 283, 285, 220 N.E.2d 167 (1966); Katz v. Pratt Street Realty Co., 257 Md. 103, 118, 262 A.2d 540 (1970); Bricker v. Walker, supra, 364; annot., 71 A.L.R.3d, supra, 1205. Where there is ambiguity in the language of the agreement, option contracts are generally strictly construed against the optionee. Pigeon v. Hatheway, 156 Conn. 175, 183, 239 A.2d 523 (1968). “If an option contract provides for payment of all or a portion of the purchase price in order to exercise the option, the optionee, to be entitled to a conveyance, must not only accept the offer but pay or tender the agreed amount within the prescribed time.” Coombs v. Ouzounian, 24 Utah 2d 39, 41, 465 P.2d 356 (1970); Miller v. Carmody, 152 Colo. 353, 358, 384 P.2d 77 (1963); see annot., 71 A.L.R.3d, supra, 1205. In such cases, a mere acceptance of the offer, even though unequivocal, is insufficient to exercise the option. Miller v. Carmody, supra, 358-60. The determination of the terms and conditions of Carpet Center’s option contract must be resolved, in the absence of supplementary evidence of the intent of the parties, by reference to the terms of the contract itself. Brauer v. Freccia, 159 Conn. 289, 293, 268 A.2d 645 (1970); Texas Co. v. Crown Petroleum Corporation, 137 Conn. 217, 226, 75 A.2d 499 (1950). Because such a determination is a question of fact, the trial court’s findings in this regard must stand unless they are clearly erroneous. Gallicchio Bros., Inc. v. C & S Oil Co., 191 Conn. 104, 107, 463 A.2d 600 (1983); Rahmati v. Mehri, 188 Conn. 583, 587, 452 A.2d 638 (1982).

On their face, the relevant documents and evidence in this case support the trial court’s findings that Carpet Center was obligated to match the deposit provisions of the Smith-Hevro contract, and that Carpet Center’s failure to do so rendered invalid its attempted exercise of its option. Carpet Center relies, however, on the clause in the Smith-Hevro contract which required the Smith deposit to be paid “upon the signing of this Contract.” Since that clause made the tender of a contract of sale a precondition to Smith’s obligation to pay a deposit, Carpet Center maintains that it too was entitled to postpone its payment of a deposit until it received a contract of sale from Hevro. We are unpersuaded.

Carpet Center's argument misperceives the legal significance of the written document in the Smith-Hevro relationship on the one hand and the Carpet CenterHevro relationship on the other hand. A written contract between Smith and Hevro was necessary both to spell out the terms of their mutual undertakings and to satisfy the statute of frauds. Heyman v. CBS, Inc., 178 Conn. 215, 220, 423 A.2d 887 (1979); Botticello v. Stefanovicz, 177 Conn. 22, 31, 411 A.2d 16 (1979). Smith’s signature on this contract created a legally effective offer to purchase the Hevro property on the terms contained in the document which, when signed by Hevro, resulted in a binding agreement between the parties. Hevro’s written notice to Carpet Center of this proposed sale, on the other hand, when combined with the underlying lease provision, constituted a binding offer by Hevro to sell the property to Carpet Center on the terms and conditions contained in the attached Smith-Hevro contract. Imperial Refineries Corporation v. Morrissey, supra, 940. The writings together were sufficient to spell out the terms of the offer and to satisfy the statute of frauds. Heyman v. CBS, Inc., supra, 220-21. Carpet Center’s unconditional written acceptance of this offer was legally sufficient to create a binding contract. 3 Thompson, Real Property (1959) § 1155, pp. 588-89. This combination of writings was for Carpet Center the legal equivalent of the single document signed by Smith. Since Smith was required to tender deposit upon the signing of his contract, Carpet Center was obligated to make an equivalent deposit upon the signing of its contract, that is, upon the signing of the letter exercising its option. Although Carpet Center might have preferred to memorialize its purchase of the Hevro property in a new writing, such a writing would have had no effect on its fully matured rights under the option contract derived from its lease. For that reason, Carpet Center was not entitled to a new contract as a matter of law. The trial court was therefore correct in finding that the terms of Carpet Center’s option contract did not permit Carpet Center to insist on a new writing as a precondition to its tender of the deposit.

Carpet Center further argues, however, that even if a new contract was not a precondition to its duty to tender the deposit, that duty was excused altogether by Hevro’s subsequent conduct. In support of this argument, Carpet Center points to two specific actions of Hevro: first, Hevro’s letter of August 9,1983, in which Hevro extended to August 17 the deadline for Carpet Center’s compliance; and second, the statement of Hevro’s attorney on August 16 that Hevro was adopting a “hands off policy” concerning the relative rights of Carpet Center and Smith to purchase the property. The trial court found that Hevro’s August 9 letter was effective to extend until August 17 the time for Carpet Center’s performance, but that Carpet Center’s failure to tender the deposit by that deadline was unreasonable.

We conclude that Carpet Center’s obligation to tender the deposit was not excused by Hevro’s conduct. Tender may be excused where it “would be a mere futility”; Vachon v. Tomascak, 155 Conn. 52, 57, 230 A.2d 5 (1967); as, for example, where the vendor has already repudiated the contract of sale. H. M. R., Inc. v. Boeckenhauer, 24 Ill. 2d 65, 70, 179 N.E.2d 613 (1962). Carpet Center claims that Hevro’s adoption of a “hands off policy” effectively amounted to a repudiation of the contract. We disagree. Hevro’s willingness to extend the time for Carpet Center’s performance is far more consistent with readiness to perform than with repudiation. Hevro’s “hands off policy” may have indicated a reluctance to become embroiled in the legal battle brewing between Smith and Carpet Center, but it did not indicate a repudiation of either its option contract with Carpet Center or its conditional sales contract with Smith. On the contrary, Hevro repeatedly stated that it was willing to convey either to Carpet Center or to Smith, whichever one demonstrated superior legal rights to the property. It was Carpet Center’s own failure to satisfy the terms of its option contract which prevented that contract from being completed. The trial court would have been justified in finding that Carpet Center was obligated to tender its deposit simultaneously with its July 22 letter of acceptance. Instead, the court recognized Hevro’s letter of August 9 as effective to extend the deadline to August 17, thus granting Carpet Center an additional period in which to perform. Carpet Center’s failure to meet even that extended deadline clearly extinguished its rights under its option contract. The trial court therefore did not err in finding that Carpet Center did not effectively exercise its option, and that this failure foreclosed its right to purchase the property.

II

Carpet Center next claims that the trial court erred in finding that Hevro had not broken its lease agreement with Carpet Center when it entered into a conditional sales contract with Smith. Specifically, Carpet Center argues that Hevro was obligated to notify Carpet Center as soon as it had received an acceptable offer from Smith, before it had executed a contract with him. Even though the Hevro-Smith contract was expressly made subject to Carpet Center’s right of first refusal, Carpet Center characterizes Hevro’s execution of that contract as a violation of the terms of the lease. We find no merit to this contention.

The language of the lease agreement itself refutes Carpet Center’s claim. The relevant provision states that “[i]n the event that during the term of this Lease the LESSOR shall desire to sell said premises and shall find a bonafide purchaser, then the LESSOR shall immediately give notice of the terms of the proposed purchaser ... to the [LESSEE].” (Emphasis added.) The lease refers to a bona fide purchaser, not to an offeror. Nothing in this language prohibited the lessor, Hevro, from entering into a conditional agreement with Smith, so long as that agreement honored Carpet Center’s right of first refusal. Since the Hevro-Smith contract and accompanying agreement clearly made Smith’s right to purchase the property conditional on Carpet Center’s failure to exercise its option, Hevro’s execution of the contract did not violate the express terms of the lease.

Carpet Center argues, however, that such a requirement may be implied from the nature of the right of first refusal itself. It cites as sole authority for this proposition a portion of a passage in Corbin on Contracts, supra, which seems to characterize just such a conditional sales contract as a violation of a right of first refusal. On close examination, however, it becomes apparent that the evil from which Corbin sought to shelter the holder of a right of first refusal was the passage of title subject to the holder’s right, and not the negotiation of an executory contract of sale expressly conditioned upon a right of first refusal. 1A Corbin, supra, § 261, p. 474.

We can discern no reason of policy to interpolate into the lease between Hevro and Carpet Center conditions and prerequisites that the agreement on its face does not contain. Carpet Center’s right of first refusal was not compromised in any way by the conditional agreement entered into by Hevro and Smith. On the contrary, Hevro adhered strictly to the terms of the lease by sending notice of the offer to Carpet Center, and it stood ready at all times to honor Carpet Center’s right to purchase. Consequently, the trial court did not err in finding that Hevro did not break its lease agreement with Carpet Center.

III

Carpet Center’s final claim is that the trial court erred in ordering specific performance of the HevroSmith contract. The crux of this claim is that Carpet Center, not Smith, had a stronger legal interest in the property, and that the equities favor honoring that interest. In light of our disposition of the first two issues in this case, this claim has no merit.

A trial court enjoys broad discretion in its decision to order specific performance of a contract to sell land. Frumento v. Mezzanotte, 192 Conn. 606, 615, 473 A.2d 1193 (1984). That decision will not be upset unless it is clearly erroneous. Id., 617. In the present case, the trial court found that Carpet Center’s legal right to purchase the Hevro property was extinguished when it failed to exercise its option to purchase; that Smith, upon the expiration of Carpet Center’s option, had a valid contract to purchase the property; that the property “uniquely suited” his purposes; and that he was “ready, willing and able to close pursuant to the contract.” We have already decided that the trial court was correct in the first two of these findings, and Carpet Center has not contested the other two. Under these circumstances, the trial court was acting well within its discretion in ordering Hevro to perform specifically according to the terms of its contract with Smith.

There is no error.

In this opinion the other judges concurred.

       Carpet Center also cross claimed against Hevro alleging tortious interference with legitimate business expectations. The judgment against Carpet Center on this claim has not been challenged on this appeal.

       Following judgment, the trial court granted a stay of the order granting specific performance. The stay was eventually terminated on August 1, 1984, and specific performance was ordered to be carried out by November 30, 1984. Hevro has since conveyed the property to Smith.

         Carpet Center has not appealed the adverse judgment on its counterclaims against Smith, nor has Smith appealed the adverse judgment he received on his slander of title claim against Carpet Center. Hevro has not appealed any part of the judgment.

       The lease agreement between Carpet Center and Hevro also gave Carpet Center a separate right of first refusal to lease additional space in the building.

       The right of first refusal contained in the lease agreement provided the following:
      “It is further agreed by the LESSOR, and the LESSOR does hereby grant a right of first refusal for the purchase of said premises upon which the leased premises herein are located. In the event that during the term of this Lease the LESSOR shall desire to sell said premises and shall find a bonafide purchaser, then the LESSOR shall immediately give notice of the terms of the proposed purchaser, Certified Mail, Return Receipt Requested, to the LESSOR [sic]. Should there be no reply to the offer within thirty (SO) days of the date of the mailing of said Certified Mail, then the LESSEE shall be deemed to have rejected the terms of said offer and thereby waive [sic] the right of first refusal.”

       At the time Smith entered into the conditional contract to purchase the property which is the subject of the present action, he also entered into a separate agreement to lease the empty space in the building. This lease agreement was made subject to Carpet Center’s right of first refusal to lease this portion of the building. On June 24,1983, Hevro sent Carpet Center notice of the lease agreement between Smith and Hevro, but Carpet Center never responded to this notice. This agreement was not challenged in the underlying action.

       On June 20, 1983, Hevro and Smith executed a separate agreement, clarifying the parties’ rights and responsibilities relative to Carpet Center’s rights of first refusal. This agreement gave Smith the option of declaring the contract of purchase and/or the lease agreement null and void in the event that Carpet Center exercised either of its rights of first refusal.

       Neither Smith nor Hevro has pursued on appeal the claim that Carpet Center’s exercise was also ineffective because it lacked the signature of a corporate officer.

       Carpet Center also claims error in the trial court’s failure to award damages. In view of our disposition of this case, we need not consider this issue.

       Hevro has never contested the timeliness of Carpet Center’s reply. In its letter to Carpet Center of August 9, 1983, Hevro stated: “We accept the fact that the option time limitations were met.” In his testimony at trial, Hevro’s attorney acknowledged that Hevro considered Carpet Center’s exercise of its option to have been timely.

       Carpet Center also argues that tender of deposit was not necessary to provide consideration for the contract of sale. The issue of consideration is, of course, distinct from the issue of whether tender of the deposit was a condition precedent to the formation of a valid contract.

       We note that the original lease agreement between Hevro and Carpet Center was drafted on the stationery of Carpet Center’s attorney. If Carpet Center wished to have a new writing, it could easily have drafted one and proffered it to Hevro.

       The trial court did not address the question of whether Smith’s rights under his contract with Hevro prevented Hevro from validly extending Carpet Center’s time for performance. In view of our disposition of this case, we need not decide this question.


text:
    Skaarup Shipping Corporation v. Commissioner of Revenue Services
    (12584)
    Peters, C. J., Healey, Dannehy, Callahan and Doyle, Js.
    Argued March 6
    decision released April 15, 1986

      Vernon C. Miller, Jr., for the appellant (plaintiff).

      Robert L. Klein, assistant attorney general, with whom, on the brief, was Joseph I. Lieberman, attorney general, for the appellee (defendant).
   Peters, C. J.

The issue in this ease is whether a corporation that has elected to treat payments of foreign income taxes as a credit for federal tax purposes may claim such payments as a deduction from its taxable income under the Connecticut corporate business tax. The department of revenue services disallowed the deduction and assessed tax deficiencies for the years 1977 and 1978 against the plaintiff, Skaarup Shipping Corporation. The plaintiff took a timely but unsuccessful appeal to the defendant, the commissioner of revenue services. The plaintiffs subsequent appeal to the Superior Court, pursuant to General Statutes § 12-237, resulted in a stipulation of facts by the parties and a request to the court for reservation of the question of law for the consideration and advice of the Appellate Court. The trial court agreed to reserve the question, and this court transferred the reservation here. We answer the reserved question in the negative.

The stipulation reveals the following facts. The plaintiff Skaarup is a New York corporation authorized to do business in Connecticut. Its business is worldwide ocean shipping. During the tax years 1977 and 1978, the plaintiff was a partner in Natomas-Skaarup Marine Sales, a partnership conducting business in the United Kingdom. Because of these activities, the partnership, and the plaintiff as a partner, incurred liability for United Kingdom income taxes.

The plaintiff reported its share of the partnership income and of the United Kingdom income taxes on its 1977 and 1978 federal and state tax returns. The plaintiff elected to treat the United Kingdom taxes as a credit under 26 U.S.C. § 901, even though that election did not provide the. plaintiff with a credit in the full amount of the taxes paid. See 26 U.S.C. § 904. As a consequence of its election to treat the taxes as a credit, the plaintiff was barred by Internal Revenue Code §§ 275 (a) (4) and 905 (a) from taking the taxes as a deduction on its federal tax returns for the years in question. In filing its Connecticut corporation tax returns, the plaintiff deducted in each year the full amount of the United Kingdom taxes that it had paid.

The department of revenue services interpreted General Statutes § 12-217 to disallow the plaintiffs claimed deductions to the extent that they exceeded the foreign tax credits reported on the plaintiffs federal income tax returns. Accordingly, the plaintiff was notified of deficiency assessments for its 1977 and 1978 state tax returns. The plaintiff declined to pay the additional taxes and contested the adverse ruling at a hearing before the director of protests and hearings. The defendant commissioner denied its appeal.

The question upon which the parties seek the advice of this court is as follows: “May the plaintiff corporation deduct, pursuant to [§] 12-217 of the Connecticut General Statutes, the entire amount of foreign income taxes paid or accrued to arrive at its net income for Connecticut Corporation Business Tax purposes for the years in question, despite the fact that the plaintiff elected under [§] 901 of the Internal Revenue Code to treat such foreign income taxes as a credit, rather than as a deduction, for federal income tax purposes, and was thus precluded from taking a ‘deduction’ of such foreign taxes on the plaintiff’s federal income tax returns for the years in question under [§§] 275 (a) (4) and 905 (a) of the Internal Revenue Code?”

Resolution of the question reserved to us requires an examination of relevant provisions of the statutes governing the corporate business tax. By way of background, General Statutes § 12-213 defines “gross income” as “gross income as defined in the federal corporation net income tax law ...” and “net income” as “net earnings received during the income year and available for contributors of capital, whether they are creditors or stockholders, computed by subtracting from gross income the deductions allowed by the terms of section 12-217 . . . .” The key provision, however, is General Statutes § 12-217 (a) which states that “[i]n arriving at net income as defined in section 12-213, whether or not the taxpayer is taxable under the federal corporation net income tax, there shall be deducted from gross income, (A) all items deductible under the federal corporation net income tax law effective and in force on the last day of the income year . . . . ”

The parties offer competing versions of the meaning to be attributed to § 12-217’s reference to “items deductible under the federal corporation net income tax law.” The plaintiff argues that the statute allows a taxpayer to deduct all items that could have been deducted under the federal tax law, not just those items that were in fact deducted on the taxpayer’s federal tax return. Since the plaintiff was permitted to treat foreign income taxes as a deduction from gross income by 26 U.S.C. § 164 (a) (3), the plaintiff argues that these taxes were deductible despite its election to take federal tax credits rather than federal tax deductions in the relevant tax years. The defendant maintains, to the contrary, that once foreign taxes have been claimed as tax credits, they are no longer deductible under the federal tax law; 26 U.S.C. §§ 275 (a) (4) and 905 (a); and therefore that they are not deductible under § 12-217. In effect, the issue is whether § 12-217 makes the plaintiffs federal election binding on the plaintiffs calculation of its state tax obligation. Although the question is a close one, we agree with the defendant that it does.

While we have not previously addressed the implications of a taxpayer’s federal election on his privilege to claim deductions under our state tax laws, we do not write on a clean slate. We have repeatedly recognized that our tax laws incorporate federal tax principles; Harper v. Tax Commissioner, 199 Conn. 133, 506 A.2d 93 (1986); The B.F. Goodrich Co. v. Dubno, 196 Conn. 1, 7, 490 A.2d 991 (1985); Yaeger v. Dubno, 188 Conn. 206, 210, 211-12, 449 A.2d 144 (1982); Woodruff v. Tax Commissioner, 185 Conn. 186, 191, 440 A.2d 854 (1981); Peterson v. Sullivan, 163 Conn. 520, 525, 313 A.2d 49 (1972); Kellems v. Brown, 163 Conn. 478, 518-19,313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); First Federal Savings & Loan Assn. v. Connelly, 142 Conn. 483, 489-93, 115 A.2d 455 (1955), appeal dismissed, 350 U.S. 927, 76 S. Ct. 305, 100 L. Ed. 811 (1956); McKesson & Robbins, Inc. v. Walsh, 130 Conn. 460, 461-64, 35 A.2d 865 (1944). It is therefore highly significant that the federal tax code, in 26 U.S.C. §§ 275 (a) (4) and 905 (a), prohibits a taxpayer who has taken a tax credit from thereafter claiming a tax deduction for the payment of foreign taxes. We have previously held taxpayers to the state law consequences of their federal tax elections. Harper v. Tax Commissioner, supra; Miller v. Heffeman, 173 Conn. 506, 519, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978). Furthermore, we have uniformly adhered to the view that deductions from otherwise taxable income are a matter of legislative grace and hence are strictly construed against the taxpayer. Harper v. Tax Commissioner, supra; The B.F. Goodrich Co. v. Dubno, supra, 8-9; Yaeger v. Dubno, supra, 212. Finally, we have frequently expressed our deference to legislative choices about the equities of classifications in tax statutes. As has the Supreme Court of the United States, we have acknowledged “the large area of discretion which is needed by a legislature in formulating sound tax policies .... [I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Kellems v. Brown, supra, 487, quoting Madden v. Kentucky, 309 U.S. 83, 87-88, 60 S. Ct. 406, 84 L. Ed. 590 (1940); Gunther v. Dubno, 195 Conn. 284, 291, 487 A.2d 1080 (1985); Miller v. Heffeman, supra, 509-10. In combination, these precedents lend strong support to the position of the defendant tax commissioner in this case.

In order to prevail in the light of these precedents, the plaintiff must establish that § 12-217 clearly and unambiguously authorizes a corporate taxpayer’s right to claim a deduction for foreign taxes despite the taxpayer’s exercise of his federal right to treat such taxes as a credit. The plaintiff asks us to focus on two aspects of the text of § 12-217 (a): (1) the use of the adjective “deductible” rather than “deducted” as a criterion of an allowable deduction; and (2) the use of the referent “gross income” to define the base from which items “shall be deducted.” Because the dictionary definition of “deductible” is “capable of being deducted”; Webster, Third New International Dictionary; and because the legislature chose a referent other than the taxpayer’s federal taxable income, the plaintiff maintains that items that could have been deducted from the plaintiff’s federal gross income are equally deductible under § 12-217.

As the defendant points out, however, the plaintiff’s analysis does not take full account of all of the relevant text of § 12-217 (a). In describing the items that are deductible, the statute refers to “the taxpayer” and to “deductible under the federal corporation net income tax law effective and in force on the last day of the income year . . . .” This language supports the defendant’s construction of “deductible” as meaning “deductible for this taxpayer.” The foreign taxes of this taxpayer were no longer deductible under the federal law, no longer capable of being deducted, after the election to take a federal tax credit. At the very least, the defendant’s argument demonstrates that “deductible under the federal corporation net income tax law” does not unambiguously have the meaning ascribed to it by the plaintiff. The plaintiff therefore cannot prevail.

Courts in other jurisdictions have disagreed about whether a taxpayer in calculating his state tax liability may ignore a prior federal election to claim foreign taxes as credits rather than as deductions. The position of the plaintiff finds support in Bogner v. Department of Revenue and Taxation, 107 Idaho 854, 856, 693 P.2d 1056 (1984), and in George, Inc. v. Norberg, 444 A.2d 868, 869-70 (R.I.1982), while the defendant relies on Caterpillar Tractor Co. v. Lenchos, 84 Ill. 2d 102, 126, 417 N.E.2d 1343 (1981); Albany International Corporation v. Halperin, 388 A.2d 902, 906 (Me. 1978), and Commonwealth v. Westinghouse Electric Corporation, 478 Pa. 164, 168, 386 A.2d 491 (1978). As the parties conceded at oral argument, none of these cases is precisely on all fours, either because of differences in the wording of the underlying statutes or because of differences in the applicable rules of construction for tax deductions. Although they help to illuminate the argument, they do not resolve the issue before us.

The question reserved to this court is answered: No.

In this opinion the other judges concurred.

       General Statutes § 12-237 provides in relevant part: “appeal. Any taxpayer aggrieved because of any order, decision, determination or disallowance of the commissioner of revenue services under the provisions of this part may, within one month after service upon the taxpayer of notice of such order, decision, determination or disallowance, take an appeal therefrom to the superior court for the judicial district of Hartford-New Britain, which shall be accompanied by a citation to the commissioner of revenue services to appear before said court.”

       The income received by Skaarup from its activities in the United Kingdom and the income taxes paid thereon to the United Kingdom during the years in question were as follows:
      Income from the United Kingdom United Kingdom Income Taxes
      1977 $57,166 $29,750
      1978 85,430 44,400

       At the time in question, 26 U.S.C. § 901 provided in relevant part: “taxes of foreign countries and of possessions of united states. (a) allowance OF credit. If the taxpayer chooses to have the benefits of this subpart, the tax imposed by this chapter shall, subject to the limitation of section 904, be credited with the amounts provided in the applicable paragraph of subsection (b) plus, in the case of a corporation, the taxes deemed to have been paid under sections 902 and 960.”

       In 1977 and 1978, the amounts credited by the plaintiff against its federal income taxes relative to the amounts actually paid in taxes to the United Kingdom were:
      Taxpayer’s share — United 1977 1978
      Kingdom income taxes $29,750 $44,400
      Amount claimed as foreign
      tax credit 9.722 5.714
      Unused foreign taxes $20,028 $38,686

       At the time in question, 26 U.S.C. § 904 provided in relevant part: “limitation on credit, (a) limitation. The total amount of the credit taken under section 901 (a) shall not exceed the same proportion of the tax against which such credit is taken which the taxpayer’s taxable income from sources without the United States (but not in excess of the taxpayer’s entire taxable income) bears to his entire taxable income for the same taxable year.”

       At the time in question, 26 U.S.C. § 275 (a) provided in relevant part: “No deduction shall be allowed for the following taxes ... (4) Income, war profits, and excess profits taxes imposed by the authority of any.foreign country or possession of the United States, if the taxpayer chooses to take to any extent the benefits of section 901 (relating to the foreign tax credit).”
      At the time in question, 26 U.S.C. § 905 (a) provided: “year in which credit taken. The credits provided in this subpart may, at the option of the taxpayer and irrespective of the method of accounting employed in keeping his books, be taken in the year in which the taxes of the foreign country or the possession of the United States accrued, subject, however, to the conditions prescribed in subsection (c). If the taxpayer elects to take such credits in the year in which the taxes of the foreign country or the possession of the United States accrued, the credits for all subsequent years shall be taken on the same basis, and no portion of any such taxes shall be allowed as a deduction in the same or any succeeding year.”

       Although the parties’ briefs also advert to the issue of double taxation, counsel for both parties agreed at oral argument that this issue was not included in the question reserved for this court’s consideration. Consequently, no such issue is before the court in this case.

       At the time in question, 26 U.S.C. § 164 (a) (3) provided: “Except as otherwise provided in this section, the following taxes shall be allowed as a deduction for the taxable year within which paid or accrued ... (3) State and local, and foreign, income, war profits, and excess profits taxes.”


author: Per Curiam.

text:
    State of Connecticut v. Guillermo Pardo
    (12515)
    Peters, C. J., Dannehy, Santaniello, Callahan and Ment, Js.
    Argued March 4
    decision released April 15, 1986

      M. Daniel Friedland, for the appellant (defendant).

      James G. Clark, deputy assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Mark W. Brodsky, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Guillermo Pardo, was convicted by a jury of possession of narcotics with intent to sell, in violation of General Statutes (Rev. to 1983) § 21a-277 (a), and of possession of narcotics, in violation of General Statutes § 21a-279 (a). The defendant has raised three claims of error, none of which warrants extended discussion.

The jury could reasonably have found the following facts. On December 17,1983, two Hartford police officers received information from an unidentified informer that a Hispanic male dressed in a tan jacket, jeans and a cap was selling cocaine in foil packets at the corner of Nelson and Main Streets. Observing the scene from an abandoned building, the officers saw a man, later identified as the defendant, who fit the description. The officers watched the defendant engage in two separate transactions in which he transferred a foil packet in exchange for money to another person. As the officers approached the defendant, they saw him remove four tinfoil packets and drop them on the ground. One of the officers arrested and immediately searched the defendant and found two squares of tinfoil and $173.00 upon his person. Subsequent laboratory tests disclosed that the tinfoil packets contained cocaine.

The defendant’s first claim of error alleges that he was entitled to a mistrial because of prosecutorial misconduct. At trial, defense counsel sought to impress on the jury that the amount of cocaine allegedly contained in the tinfoil packets was too small an amount to warrant prosecution for sale of narcotics. In his cross-examination of the state’s toxicologist, defense counsel succeeded in having that witness characterize four hundred milligrams, the amount of cocaine involved in this prosecution, as “essentially a garbage case.” Shortly thereafter, the state rested its case and the defendant, outside the presence of the jury, moved for a directed verdict, arguing that “it’s a garbage case as the expert indicated.” Counsel for the state replied, “If it’s a garbage case, Mr. Friedland can give his own children some cocaine. I will ask that the Motion be denied.” The trial court denied the defendant’s motion. After the jury had been brought back, defense counsel moved for a mistrial based on “[the prosecutor’s] comments [to] which I take offense, about those comments of my children using cocaine.” The court instructed the jury to disregard these remarks of defense counsel and advised the defense to proceed with its case.

It is fanciful to argue that these events entitled the defendant to a mistrial. Although the remark of the assistant state’s attorney was unprofessional and offensive, his conduct while the jury was absent could have had no impact whatsoever on the fairness of the defendant’s trial. But for the repetition of the prosecutor’s remark by defense counsel after the jury had returned, the jury would never have learned what had transpired. The defendant cannot claim a mistrial because of an error induced by his own counsel. State v. Ross, 189 Conn. 42, 47, 454 A.2d 266 (1983); State v. Cobbs, 164 Conn. 402, 424, 324 A.2d 234, cert. denied, 414 U.S. 861, 94 S. Ct. 77, 38 L. Ed. 2d 112 (1973). The trial court’s denial of the motion for mistrial in these circumstances did not constitute an abuse of its discretion. State v. Gaston, 198 Conn. 490, 495-97, 503 A.2d 1157 (1986); State v. Fleming, 198 Conn. 255, 264-68, 502 A.2d 886 (1986); State v. Dolphin, 195 Conn. 444, 452-53, 488 A.2d 812, cert. denied, 474 U.S. 833, 106 S. Ct. 103, 88 L. Ed. 2d 84 (1985); State v. Vass, 191 Conn. 604, 613, 469 A.2d 767 (1983); State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982).

The defendant contends, in his second claim of error, that the trial court insufficiently replied to an interrogatory from the jury during its deliberations. The jury sent a note to the court asking: “We would like an indication whether the quantity has any bearing on intent to sell according to the law.” The court replied by reading to the jury the relevant part of the governing statute, § 21a-277 (a). Defense counsel excepted, urging the court to instruct the jurors that the answer to their question was in the affirmative. In evaluating the adequacy of a supplemental instruction, we consider the main and the supplemental instructions as a whole. State v. Topciu, 183 Conn. 1, 6, 438 A.2d 803 (1981); State v. Reed, 174 Conn. 287, 308, 386 A.2d 243 (1978). Viewing the instruction from this perspective, we conclude that the defendant has not met his burden of showing that it was reasonably probable that the jury was misled. State v. Ralls, 167 Conn. 408, 422, 356 A.2d 147 (1974).

The defendant also asserts, in his final claim of error, that he was denied effective assistance of counsel because his attorney was not permitted adequate time to prepare for trial. On the very day that the defendant’s case was scheduled for jury selection, the defendant discharged his prior counsel and retained his present counsel. The jury was selected on that day, a Friday, and the case proceeded to trial the following Tuesday. The defendant claims error in the trial court’s refusal of his request for a continuance. The defendant has not pressed, on appeal, a claim that the denial of his request for a continuance constituted an abuse of discretion by the trial court. See State v. Beckenbach, 198 Conn. 43, 47-52, 501 A.2d 752 (1985); State v. Marra, 195 Conn. 421, 437-38, 489 A.2d 350 (1985); State v. Myers, 193 Conn. 457, 463-64, 479 A.2d 199 (1984); State v. Chairamonte, 189 Conn. 61, 65-66, 454 A.2d 272 (1983). Furthermore, defense counsel has pointed to no specific occurrence at the trial that furnishes evidence of the inadequacy of his representation of the defendant. As we have recently held in State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480 (1986), this kind of claim must be litigated, on a proper factual record, in a proceeding on a writ of habeas corpus.

There is no error.

       General Statutes (Rev. to 1983) § 21a-277 (a) provides: “(Formerly Sec. 19-48). PENALTY FOR ILLEGAL MANUFACTURE, DISTRIBUTION, SALE, prescription, dispensing, (a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance, other than marihuana, or a narcotic substance except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than three thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than five thousand dollars, or be both fined and imprisoned.”

       “[General Statutes] Sec. 21a-279. (Formerly Sec. 19-481). penalty for ILLEGAL POSSESSION. SUBSTITUTION OF MEDICAL TREATMENT FOR CRIMINAL sanctions, (a) Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than fifty thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for any subsequent offense, may be imprisoned not more than twenty-five years, or be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The trial court’s main instruction included the following passage: “Now, if you find that the defendant was in possession of cocaine then among the matters which you may consider in determining whether the defendant was in possession of the cocaine with intent to sell are the value of the drugs, the quantity of the drugs seized, also the presence or absence of evidence indicating that the defendant possessed the drugs for his own use. To draw such an inference and intention to sell is not only the privilege of the jury but also the duty of the jury provided, of course, the inference drawn is a reasonable and logical one.