author: Covello, J.

text:
    Jose Quintana v. Warden, State Prison
    (14269)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.
    Argued June 5
    decision released August 6, 1991

      Jack W. Fischer, deputy assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Marcia Smith, assistant state’s attorney, for the appellant (respondent).

      Karen Goodrow, assistant public defender, for the appellee (petitioner).
   Covello, J.

This is an appeal from a judgment of the Superior Court granting the petitioner’s application for a writ of habeas corpus. In 1987, a jury found the petitioner guilty of felony murder in violation of General Statutes § 53a-54c. We upheld the conviction on appeal. State v. Quintana, 209 Conn. 34, 547 A.2d 534 (1988). The petitioner thereafter filed the present petition seeking a writ of habeas corpus. The habeas court concluded that the petitioner had been denied his right to effective assistance of counsel under the sixth amendment to the United States constitution during the course of his criminal trial. The dispositive issue on appeal is whether the habeas court applied the proper standard in reviewing the petitioner’s claim of ineffective assistance of counsel.

The facts established at the petitioner’s criminal trial and reported in State v. Quintana, supra, 36-37, are as follows: On March 11, 1986, Robert Chrisman was fatally stabbed on a sidewalk in Waterbury. A lighter and cigarette case belonging to the petitioner and bearing his fingerprints were found near the body. Gregorio Hernandez testified that the petitioner had told him that he, the petitioner, had killed Chrisman in the course of a robbery attempt. On cross-examination, Hernandez denied having any financial interest in testifying against the petitioner. The petitioner testified in his own behalf at trial, admitting that he had killed Chrisman, but claiming that Chrisman’s death was the result of an altercation, not a robbery attempt, and that the petitioner had acted in self-defense.

The petitioner claimed before the habeas court that he had been denied effective assistance of counsel because his trial counsel failed adequately to cross-examine the state’s principal witness and to investigate the petitioner’s claim of self-defense. Specifically, the petitioner argued that his attorney should have more thoroughly examined Hernandez on the issue of the reward money and any arrangements he might have made with the police in return for testifying against the petitioner in consideration of leniency with respect to a weapons charge that was pending against him. The petitioner also claimed he had told his trial counsel that he had suffered a laceration on his back during the altercation with the victim, but that his trial counsel had failed to photograph the wound or to have a doctor examine it.

The habeas court found that proof of the felony murder charge consisted principally of Hernandez’ testimony, that the stabbing had occurred as an incident to a robbery, and that the petitioner’s trial counsel had not aggressively cross-examined Hernandez concerning the reward money or his motives for testifying. Furthermore, the habeas court found that the petitioner’s trial counsel had not adequately investigated the petitioner’s alleged injury and claim of self-defense and that such an investigation might have produced evidence that would have seriously undermined the state’s case on the felony murder charge. The habeas court concluded that the appropriate standard for examining claims of ineffective assistance of counsel was set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984), and that, under the Strickland test, the petitioner had demonstrated that he had not been adequately represented. The habeas court therefore granted the petition for a writ of habeas corpus and ordered a new trial. The state appealed to the Appellate Court. We transferred the case to this court pursuant to Practice Book § 4023.

“[W]e have pointed out the guidance afforded by Strickland [v. Washington] and other decisional law in assessing a claim of ineffective assistance of counsel.” Levine v. Manson, 195 Conn. 636, 649, 490 A.2d 82 (1985). “The right to effective assistance of counsel is guaranteed by the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution.” Id., 639. “ ‘In Strickland the Court, while holding that the Sixth Amendment right to counsel is one of “effective assistance” . . . nevertheless imposed a two-component showing before a claim of deprivation of that right may be made: first, it must be shown that the attorney’s performance was so deficient and his errors so serious that “counsel was not functioning as . . . ‘counsel’” . . . and, second, that those errors functioned so “as to deprive the defendant of a fair trial, a trial whose result is reliable” . . . i.e., that there exists “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ Gulliver v. Dalsheim, 739 F.2d 104, 107 (2d Cir. 1984), quoting Strickland v. Washington, supra, 687, 694. Strickland stated not only that ‘[¡'judicial scrutiny of counsel’s performance must be highly deferential’ but also that the reviewing court ‘must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance . . . Levine v. Manson, supra, 640. The burden is thus on the petitioner to demonstrate that counsel’s conduct falls below the Strickland standard. Id.

As an initial matter, the habeas court found that the petitioner’s attorney had not aggressively cross-examined the state’s principal witness, Hernandez. Examination of the record reveals, however, that counsel did cross-examine Hernandez about whether he had a financial interest in testifying about the petitioner and that Hernandez replied in the negative. Because Crime-stoppers, Inc., pays a reward for information leading to an arrest, as opposed to a conviction, there was at that point no evidence suggesting that Hernandez was testifying in order to receive the reward. More fundamentally, however, while the habeas court acknowledged that Strickland establishes the appropriate test for deciding claims of ineffective assistance of counsel, the court’s conclusions indicate that it did not follow the test set forth in Strickland. Specifically, the Strickland test states that “the proper standard for attorney performance is that of reasonably effective assistance.” (Emphasis added.) Strickland v. Washington, supra, 687. The habeas court, however, stated in its oral memorandum of decision that the case “should [have been] pursued with the ultimate of zeal” and that the petitioner’s counsel did not “do the best job possible.” (Emphasis added.) Thus, the habeas court applied a “best possible assistance” standard rather than the “reasonably effective assistance” standard mandated by Strickland. Furthermore, Strickland states, “[tjhe proper measure of attorney performance remains simply reasonableness under prevailing professional norms .” (Emphasis added.) Id., 688. Thus, Strickland requires only reasonably effective assistance as measured by the standards of the bar generally. The habeas court, to the contrary, concluded that the petitioner’s attorney “had a lot more talent than he brought to bear” on the case and had not exercised “Ms best efforts.” (Emphasis added.) The habeas court, rather than judging the assistance provided by the petitioner’s counsel against the prevailing standards of the bar, judged trial counsel’s performance against the best he (trial counsel) individually was capable of doing. We conclude that the habeas court applied an incorrect standard in reviewing the petitioner’s claim of ineffective assistance of counsel and therefore reverse the judgment.

The judgment is reversed and the case is remanded for a new hearing on the habeas petition.

In this opinion the other justices concurred.

       The petitioner also raised a confrontation claim that is not presently before us. Furthermore, the state argues on appeal: (1) that counsel’s conduct at trial did not constitute ineffective assistance of counsel; and (2) that the attorney’s conduct did not prejudice the petitioner. Because of our disposition of this case on the issue of the correct standard of review, we need not decide these issues.

       Testimony at the habeas hearing revealed that Hernandez had received a reward from Crimestoppers, Inc., a private organization that uses a police telephone number, answered by local police officers, to encourage people with information about a crime to come forward. The informant is not identified by name at the time that the incriminating information is provided to the police. Whether a reward will be paid, and in what amount, is not determined until after an arrest has been made or a criminal trial has been concluded.


source: Caselaw Access Project

license: Public Domain

text:
    State of Connecticut v. Earl Badgett
    (14202)
    Peters, C. J., Shea, Callahan, Covello and Borden, Js.

      Argued May 28
    decision released August 6, 1991

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, was Donald A. Browne, for the appellant (state).

      G. Douglas Nash, public defender, for the appellee (defendant).
   Covello, J.

This is an appeal from the judgment of the Appellate Court ordering a remand to the trial court for an evidentiary hearing to determine whether the defendant, Earl Badgett, should be allowed to withdraw his guilty plea. The issue presented is whether the defendant’s plea of guilty complied with the rules of practice and with state and federal constitutional standards concerning guilty pleas, so as to render the remand unnecessary. We reverse the judgment of the Appellate Court and remand the case to that court with direction to reinstate the trial court’s judgment sentencing the defendant to a term of fifteen years imprisonment.

The Bridgeport police arrested the defendant for the unlawful sale of narcotics on June 2, 1989. At his arraignment before the trial court, Damiani, J., on July 18, 1989, the state charged him with the illegal sale of narcotics under General Statutes § 21a-278 (b). After waiving the reading of the information, the defendant pleaded not guilty. On October 23,1989, the defendant appeared before the court, Ronan, J., and changed his plea to guilty under the doctrine enunciated in North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

At the plea hearing, before any canvass of the charge had occurred, the trial court told the defendant that he would receive a fifteen year sentence. During the trial court’s subsequent canvass of the guilty plea, the defendant acknowledged that he understood the Alford doctrine and that he entered his plea voluntarily, knowingly and intelligently, with an understanding of the charge and its possible penalties, and after consultation with his attorney who had explained the charges to him.

On November 13, 1989, the trial court, Ronan, J., accepted the defendant’s plea and rendered judgment sentencing him to fifteen years imprisonment. During the sentencing proceeding, the following colloquy occurred:

“The Court: . . . Does your client wish to say anything?
“Mr. McIntosh [Assistant Public Defender, Defense Counsel]: If I may simply have a moment to inquire— Mr. Badgett does request to make a statement.
“The Court: What would you like to say Mr. Badgett?
“Mr. Badgett: I don’t understand why I’m not drug-dependent when I am. I have sniffed a lot of cocaine in the last few years.
“The Court: You have already entered your plea. Your plea has been canvassed, Mr. Badgett. The time for that issue has passed. Your record speaks for itself. You haven’t learned your lesson. You have been arrested and convicted of the same type of activity. If this sentence doesn’t teach you a lesson and you come back in, this fifteen years is going to seem like a weekend. If you want to stay in that business, there’s a risk. If you get caught, there’s a price to be paid and that’s the price you’re going to pay. It is the sentence of the Court that you be committed to the custody of the Commissioner of Corrections for fifteen years to serve.” At no time did the defendant move to withdraw his plea.

Following sentencing, the defendant appealed to the Appellate Court claiming that the plea canvass did not comply with Practice Book § 711, and that the post-plea sentencing proceeding did not comply with Practice Book § 720. Specifically, the defendant argued that his statement to the court regarding his drug dependency was a timely request to reconsider whether his plea was knowing or voluntary under Practice Book §§ 720 and 721, and whether the original plea canvass complied with Practice Book § 711. The Appellate Court agreed with the defendant and remanded the case to the trial court for an evidentiary hearing to determine whether the defendant should be allowed to withdraw his plea of guilty. After the remand order, the state requested and we granted certification to appeal pursuant to Practice Book § 4126 et seq. We reverse the judgment of the Appellate Court and remand the case to that court with direction that it reinstate the judgment of the trial court.

I

The defendant argues here, as he did before the Appellate Court, that the plea canvass did not comply with Practice Book § 711. Specifically, the defendant asserts that the trial court failed to ensure that the defendant fully understood “[t]he nature of the charge to which the plea is offered.” The defendant maintains that the trial court’s failure to explain that General Statutes § 21a-278 (b) exempts drug-dependent persons is a violation of Practice Book § 711 (1). We disagree.

Practice Book § 711 “was promulgated to ensure that such guilty pleas are made voluntarily and with full knowledge of the waiver of constitutional rights.” State v. Suggs, 194 Conn. 223, 226, 478 A.2d 1008 (1984); Blue v. Robinson, 173 Conn. 360, 373-74, 377 A.2d 1108 (1977). We have held that “[a] defendant can voluntarily and understanding^ waive these rights without literal compliance with the prophylactic safeguards of Practice Book §§ 711 and 712.” State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986). Examination of the record discloses that the trial court canvassed the defendant concerning the voluntary and knowing nature of his plea pursuant to both Practice Book § 711 and the mandate of Boykin v. Alabama, 395 U.S. 238, 243 n.5, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). “Under Boykin, in order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights—jury trial, confrontation and self-incrimination. ’ ’ State v. Badgett, supra. An examination of the relevant portions of the plea canvass reveals the following: The defendant specifically stated that he understood the ramifications of his Alford plea, that he understood the nature of the crime after discussing it with his attorney, that he was satisfied with his attorney’s advice, that he understood he was waiving certain constitutional rights, that his plea was voluntary and that he did not have any further questions about the charge.

Despite the defendant’s assertions that he understood the charge, he claims that the “off-the-record” explanations given by his attorney did not provide adequate notice of the nature of the crime. We do not agree.

The record discloses that the defendant chose to waive the reading of the information at his arraignment on July 18,1989. Further, we have never required that the trial court read the statute to the defendant in order for the canvass to comply with Practice Book § 711 if there are other reasons to believe that the defendant understands the statute. State v. Eason, 192 Conn. 37, 44, 470 A.2d 688 (1984). In this case, the defendant himself admitted that counsel had, in fact, explained the statute to him. The defendant’s reliance on Henderson v. Morgan, 426 U.S. 637, 645, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976) (guilty plea involuntary when neither counsel nor the court informed defendant about essential element), is misplaced. This is not a case like Henderson in which neither defense counsel nor the trial court had explained the nature of the charge to the accused. See Oppel v. Lopes, 200 Conn. 553, 557, 512 A.2d 888 (1986). Here, the defendant stated that he understood the charge and that his trial counsel had explained it to him.

We have previously held that § 21a-278 (b) places no burden on the state to prove that the defendant is not a drug-dependent person and that nondependency is not an element of the crime. State v. Januszewski, 182 Conn. 142, 165-67, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). We have concluded that the state may initially rely on a presumption of nondependency. Id. Even if the trial court did not rely upon the defendant’s representation that he understood the crime with which he was charged, it did not have a duty to canvass the nature of the charge with respect to drug dependency at the plea hearing because it is not an element of the crime. “Whether the existence of some fact is an essential element of a crime depends upon whether the existence of that fact forms a part of the conduct prohibited by the statute; that is, whether the fact in question is part of the corpus delecti. ... We conclude that the defendant’s status as a person who is not drug-dependent is not an essential element of the offense charged. It is not a part of the prohibited conduct, i.e., the possession of a certain quantity of narcotic substance with intent to sell.” State v. Januszewski, supra, 165-66. We, therefore, conclude that the trial court complied with Practice Book § 711 at the plea hearing.

II

The defendant next argues that the postplea sentencing proceeding did not comply with Practice Book §§ 720 and 721 (1) and (2) because his plea was entered without knowledge of the nature of the charge and as such was involuntary. We do not agree.

Once a guilty plea has been accepted it cannot be withdrawn except by leave of the trial court. Practice Book § 720; see also State v. Collins, 207 Conn. 590, 597, 542 A.2d 1131 (1988). The proper procedure for challenging the knowing and voluntary nature of the plea is by a motion to withdraw the plea before the conclusion of the proceeding at which sentence is imposed. Practice Book § 720. Ordinarily, the failure to file such a motion will preclude review of alleged infirmities in the acceptance of the plea. While we have recognized exceptions to the general rule; State v. Childree, 189 Conn. 114, 115, 454 A.2d 1274 (1983); the present case does not fall within any such exception.

The defendant, who was at all times represented by counsel, had ample opportunity to move to withdraw his plea but failed to do so. Even if we did conclude that the defendant’s statement was the equivalent of a motion to withdraw his plea, we have earlier concluded that the trial court complied with the requirements of Practice Book § 711 and that the defendant entered his plea voluntarily with knowledge of the nature of the charge. Therefore, the grounds for a plea withdrawal, relied upon by the defendant as set forth in Practice Book § 721 (1) and (2), are without merit. See footnote 8, supra.

Ill

The defendant’s final argument is that his guilty plea was invalid because he did not have a sufficient understanding of the offense and the law in relation to the facts as constitutionally required by State v. Childree, supra, 121. It is appropriate, in assessing such a claim, for the trial court to presume that counsel adequately explained the charge to the defendant, given that there is some indication on the record that an explanation occurred. Oppel v. Lopes, supra, 556-59; State v. Childree, supra, 123-24. Since we have already concluded under the more stringent Practice Book standards that the defendant understood the nature of the charge to which the plea was offered, we need not repeat that discussion here.

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

In this opinion the other justices concurred.

       General Statutes § 21a-278 (b) provides: “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 narcotic substance, hallucinogenic substance other than marihuana, amphetamine-type substance, or one kilogram or more of a cannabis-type substance except as authorized in this chapter, and who is not at the time of such action a drug-dependent person, for a first offense shall be imprisoned not less than five years nor more than twenty years; and for each subsequent offense shall be imprisoned not less ten years nor more than twenty-five years. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”

       Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial. State v. Amarillo, 198 Conn. 285, 314 n.17, 503 A.2d 146 (1986). The state initially charged the defendant not only with violating General Statutes § 21a-278 (b), but also as a subsequent narcotics offender under General Statutes § 21a-277. As part of his plea bargain, the state nolled this subsequent narcotics offender charge.

       Practice Book § 711 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he fully understands:
      “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sen-fences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      ‘ ‘(5) The fact that he has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he has the right to be tried by a jury or a judge and that at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.”

       We note that “the Practice Book provisions were designed to reflect the principles embodied in Boykin [v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969)].” State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 94, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986).

       The Court: . . . Have you had enough time to discuss your case and your plea with your attorney, Mr. McIntosh?
      “The Defendant: Yes, I did.
      “The Court: Are you satisfied with the advice he’s given to you as to what you should do?
      “The Defendant: Yes.
      ‘ ‘The Court: And do you understand by pleading guilty to this one felony charge, Mr. Badgett, you are giving up or waiving certain rights you do have and among the rights you’re giving up by pleading guilty are the following, you are giving up your right to remain silent and your right not to incriminate yourself in any way. You’re giving up your right to confront your accusers and the right to allow your attorney the opportunity to cross-examine anyone who might testify against you. You’re giving up your right to present any defenses you might have to this charge and your right not to testify at all at a trial, if you didn’t want to, you don’t have to. You’re giving up your right to require the state to prove the charge against you beyond a reasonable doubt in order to convict you. When you plead guilty you give up or waive each one of those rights. Do you understand that?
      “The Defendant: Yes, sir.
      “The Court: Has anyone forced you or threatened you in any way, Mr. Badgett, to make you plead guilty?
      “The Defendant: No, sir.
      “The Court: . . . has anyone made any promises to you to make you plead guilty?
      “The Defendant: No, sir.
      “The Court: Are you pleading guilty freely and voluntarily and is that your own decision to do that at this time?
      “The Defendant: Yes, sir.
      “The Court: And you heard the—the statute was read to you, however, did Mr. McIntosh your attorney explain that statute to you so you do understand what you’re pleading guilty to and you do understand what the state would have to prove to convict you of the charge? [Emphasis added.]
      “The Defendant: Yes, sir.
      “The Court: It was [General Statutes § 21a-278 (b)]?
      “Mr. McIntosh [Assistant Public Defender]: Yes, your Honor.
      “The Court: Sale?
      “Mr. McIntosh: Yes, your Honor, sale of narcotics.
      “The Court: Do you have any questions about the charge itself, Mr. Badgett?

        “The Defendant: No, sir.
      “The Court: Now, you heard the facts recited by Mr. Benedict [Assistant State’s Attorney] as to the actual facts that led to your arrest and you indicated that they occurred on June 2, 1989. Apparently, they observed you transact or make a couple of sales of narcotics thereafter you were apprehended, searched, they found in your possession forty glassine envelopes that contained the narcotic cocaine and twenty-two that contained the narcotic heroin and those facts as recited by the State’s Attorney are the basis for the charge against you.
      “Now you’ve entered what’s known as an Alford Plea to that charge and do you understand that to mean this and is this what you want to do, that you’re not admitting you did what the state claims you did at that date, time and place, however, you do realize and you do recognize with the evidence the state has if you went to trial it’s quite possible you will be convicted and rather than risk a more severe sentence after a trial, you’re pleading guilty to take advantage of what I’ve indicated I think is an appropriate sentence if you pled at this time, that’s for a fifteen year sentence, and you don’t want to risk what could happen if you went to trial and lost. Is that what you understand it to mean and is that what you want to do?
      “The Defendant: Yes, sir.
      “The Court: And you understand the maximum penalty, the statute you’re charged under, is twenty years to serve and the minimum is five years. Do you understand?
      “The Defendant: Yes.
      “The Court: Are you on probation or parole for any other criminal offenses?
      “The Defendant: No, sir.
      “The Court: As you stand here this afternoon, Mr. Badgett, are you under the influence of any alcohol, drugs or medication or anything at all that might [a]ffect your ability to understand what you’re doing in pleading to the charge?
      “The Defendant: No, sir.
      “The Court: And do you understand, Mr. Badgett, once I do accept your plea you will not have the right to change your mind. You can’t come back to court at any later time, indicate you want to withdraw your plea or plead not guilty again because you will not be allowed to do that. Do you understand that?

        “The Defendant: Yes.
      “The Court: Do you have any questions, Mr. Badgett, about anything I’ve said to you, is there anything you don’t understand, is there anything about the case that you would like to ask the Court about?
      “The Defendant: No, sir.”

       Practice Book § 720 provides: “A defendant may withdraw his plea of guilty or nolo contendere as a matter of right until the plea has been accepted. After acceptance, the judicial authority shall allow the defendant to withdraw his plea upon proof of one of the grounds in Sec. 721. A defendant may not withdraw his plea after the conclusion of the proceeding at which the sentence was imposed.”

       Practice Book § 721 provides in relevant part: “The grounds for allowing the defendant to withdraw his plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Sec. 711;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed . . . .”

       The defendant’s reliance upon State v. Morant, 13 Conn. App. 378, 536 A.2d 605 (1988), for the proposition that no motion to withdraw should be required in this case, is unavailing. At the sentencing hearing in Morant, the defendant stated: “I had not pleaded guilty to this court on my own recognition. I was on a pressure force to plead guilty. It was the way to withdraw—” Id., 382. Subsequently, the court interrupted the defendant numerous times but he did manage to assert that he wanted to appeal. Id. Morant never filed a motion or stated orally that he wanted to withdraw his_plea but the Appellate Court concluded that his statements were clear evidence that his plea had not been entered voluntarily and ordered a remand to the trial court for an evidentiary hearing to determine whether the defendant should be allowed to withdraw his plea of guilty. Id. The facts in this case are distinguishable. The defendant never asserted to the trial court that his plea was involuntary; in fact, he never mentioned his plea. His assertions that he was drug-dependent were more akin to claims of innocence to the crime of narcotics sales by a person who is not drug-dependent under General Statutes § 21a-278 (b) than to any misunderstanding of the nature of the charge. It is instructive to note that he maintained that he understood the charge at the plea canvass and that the defendant himself raised the issue of drug dependency at the sentencing hearing, thereby indicating that he knew the nature of the charge. Furthermore, since the defendant pleaded guilty under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), he may maintain his innocence while simultaneously entering a guilty plea. The court is under no obligation to review his Alford plea merely because the defendant contends that he is innocent. Also, contrary to State v. Morant, supra, there is no evidence that the sentencing judge foreclosed the defendant’s opportunity to move to withdraw his plea.


author: Borden, J.

text:
    Robert Treat Associates Limited Partnership v. Board of Sewer Commissioners of the City of Milford Newport Associates v. Board of Sewer Commissioners of the City of Milford Milford Beach Associates v. Board of Sewer Commissioners of the City of Milford
    (14138)
    (14139)
    (14140)
    Peters, C. J., Shea, Callahan, Glass and Borden, Js.
    Argued June 6
    decision released August 6, 1991

      Clifford J. Grandjean, for the appellants (plaintiffs).

      Bruce L. Levin, for the appellee (defendant).
   Borden, J.

The dispositive issue in these consolidated appeals is whether the defendant, the board of sewer commissioners of the city of Milford, properly levied assessments of sewer user charges against certain properties owned by the plaintiffs, Robert Treat Associates Limited Partnership, Newport Associates and Milford Beach Associates. The plaintiffs appealed to the Superior Court challenging assessments of sewer user charges levied by the defendant, claiming that: (1) the method of calculating sewer user charges employed by the defendant is not authorized by § 23-83 of the Milford Code of Ordinances or by General Statutes § 7-255 (a); and (2) even if the method of calculation is authorized by § 23-83, the ordinance is invalid. The trial court rejected the plaintiffs’ claims and dismissed the appeals. Each of the plaintiffs appealed to the Appellate Court, which, suo motu, ordered consolidation of the appeals. We transferred the appeals to this court pursuant to Practice Book § 4023, and now affirm the judgments.

The plaintiffs claim that the method of calculating sewer user charges employed by the defendant is not authorized by § 23-83 and § 7-255 (a) and that, therefore, the trial court improperly dismissed their appeals from the assessments of such charges. We disagree.

The following facts are either stipulated or undisputed. Each of the plaintiffs is the owner of certain real property located in the city of Milford that has been improved by an apartment complex, which is serviced by Milford’s municipal sewer system. The defendant is the water pollution control authority for the city of Milford. See General Statutes § 7-246. For each of the 1989-90 and 1990-91 fiscal years, the defendant levied an assessment of sewer user charges against the plaintiffs’ properties. With respect to each of the assessments, the defendant calculated sewer user charges by multiplying a prescribed dollar amount by the number of modified equivalent units ascribed to each of the plaintiffs’ properties. The defendant had earlier established that one modified equivalent unit applied to a single apartment. The defendant therefore calculated the plaintiffs’ sewer user charges by multiplying the prescribed dollar amount by the number of apartments located on each of their properties.

I

We first address the plaintiffs’ claim that the trial court should have concluded that the defendant’s method of calculating the plaintiffs’ sewer user charges is not authorized by § 23-83 of the Milford Code of Ordinances. We reject this claim.

A

The plaintiffs maintain that the defendant’s failure to calculate the plaintiffs’ sewer user charges on the basis of their actual water usage is contrary to § 23-83 (a) and the first sentence of § 23-83 (b). Relying on the second sentence of § 23-83 (b), the defendant counters that because the plaintiffs’ properties are composed of residential users who have a consumptive use of water, the plaintiffs’ properties are excluded from the method of calculation based on actual water usage. We agree with the defendant.

Section 23-83 of the Milford Code of Ordinances provides in pertinent part: “(a) Each user shall pay for the [sewer] services provided by the city based on his use of the treatment works as determined by its equivalent units.

“(b) For residential, industrial, institutional and commercial users, user charges will be based on actual water usage. If a residential, commercial, institutional or industrial user has a consumptive use of water or, in some other manner, uses water which is not discharged into the wastewater collection system, the user charge for that contributor shall be based on modified equivalent units.” Section 23-81 (p) of the Milford Code of Ordinances provides: “ ‘Equivalent units’ shall mean the annual water consumption in units of one hundred (100) cubic feet divided by thirteen thousand three hundred (13,300) cubic feet rounded up to the nearest whole number.” Section 23-81 (q) provides: “ ‘Modified equivalent units’ shall be used when equivalent units are not applicable and shall be defined as discharge to municipal sewer in gallons per day divided by two hundred thirty-two (232) gallons per day, rounded up to the nearest whole number.”

It is undisputed that the plaintiffs’ properties involve residential use and, moreover, that every apartment has a consumptive use of water within the meaning of the ordinance. The second sentence of § 23-83 (b) therefore authorizes the defendant to calculate sewer user charges for the plaintiffs’ properties on the basis of modified equivalent units. Consequently, the method of calculation based on equivalent units, namely, actual water usage, does not apply to the plaintiffs’ properties.

The plaintiffs argue that such an interpretation renders superfluous § 23-83 (a) and the first sentence of § 23-83 (b). Although we recognize that, in light of the undisputed evidence that all residential users have some consumptive use of water, § 23-83 (a) and the first sentence of subsection (b) are superfluous with respect to residential users, we cannot conclude that the provisions are entirely superfluous because the record fails to indicate the method by which sewer user charges are calculated for industrial, commercial and institutional users. Put another way, the purported superfluity of these provisions in the context of residential users does not, ipso facto, mean that they must be regarded as superfluous for purposes of the proper construction of § 23-83, because they may well have effect in the context of industrial, commercial and institutional users. The failure of the plaintiffs to present a proper record in this regard, therefore, undercuts their claim that, if the defendant’s interpretation were to prevail, these provisions would be superfluous.

B

The plaintiffs next argue that the defendant’s failure to calculate the plaintiffs’ sewer user charges on the basis of their actual sewer discharge violates § 23-83 (b). We disagree.

Our analysis of the plaintiffs’ second argument consists of three parts: first, we clarify an implicit assertion that underlies this argument of the plaintiffs; next, we address the validity of that assertion; finally, we consider the merits of the argument.

1

The trial court acknowledged, but did not directly address, the plaintiffs’ challenge to the defendant’s treatment of each apartment on the plaintiffs’ properties as one residential user unit. We agree with the trial court that this contention implicitly underlies the plaintiffs’ appeals of the assessments.

The number of modified equivalent units attributable to a residential user of the sewer system is determined by dividing the number of gallons that the user discharges into the system each day by 232 and rounding the resultant figure up to the nearest whole number. Milford Code of Ordinances § 23-81 (q). Thus, because it is undisputed that every connection to the sewer system causes some discharge into the system, the sewer user charge for every residential user will be based on a minimum of one modified equivalent unit. In fact, the defendant admits that with respect to residential users it considers the numerator of the fraction in the modified equivalent unit formula always to be a positive number less than 232, which consequently produces a value greater than zero and less than one, which, when rounded up to the nearest whole number, or one, results in a figure of one modified equivalent unit per residential user.

In calculating the sewer user charges for the plaintiffs’ properties, the defendant ascribed one modified equivalent unit to each residential user. Because the defendant calculated the plaintiffs’ sewer user charges on the basis of the minimum number of modified equivalent units applicable to residential users, the plaintiffs’ challenge to the defendant’s method of calculation appears unfounded. We presume, therefore, that the plaintiffs implicitly challenge the defendant’s treatment of each apartment on the plaintiffs’ properties as one residential user.

Our presumption is consistent with the factual groundwork of the plaintiffs’ claim. The plaintiffs assert that the amount of sewage discharged by their respective properties is determined by measuring the amount of water provided to the properties and reducing that figure by 15 percent to account for the water that is consumed and, therefore, not discharged into the sewer system. The figures that the plaintiffs have provided regarding water usage reflect the amount of water used by each of their properties as a whole. They have not provided any figures concerning the amount of water used by each of the apartments. The plaintiffs appear to assert, therefore, that the number of modified equivalent units upon which their sewer user charges must be based is equal to the number of gallons of water used daily by each of their properties as a whole, reduced by 15 percent, divided by 232 gallons and rounded up to the nearest whole number. Calculation of modified equivalent units in this manner would regard each of the plaintiffs’ properties as one residential user.

2

Because the plaintiffs’ second argument is premised upon this assertion, we must determine whether the defendant properly regarded each apartment as one residential user in calculating the sewer user charges assessed against the plaintiffs’ properties.

Section 23-81 (e) of the Milford Code of Ordinances provides: “ ‘Residential user’ shall mean any contributor to the city’s treatment works whose lot, parcel or real estate, or building is used for domestic dwelling purposes only and will be considered one (1) equivalent user.” Because it is undisputed that each apartment on the plaintiffs’ properties is connected to the sewer system and that each connection to the sewer system causes some discharge, each apartment, whether occupied or vacant, is reasonably viewed as a “contributor to the city’s treatment works.” Furthermore, the plaintiffs do not dispute that the apartments on their properties are “real estate . . . used for domestic dwelling purposes only.” We conclude, therefore, that the defendant reasonably determined that each apartment on the plaintiffs’ properties is a residential user within the meaning of § 23-83 (b).

3

Having determined that the defendant properly regarded each apartment as a residential user in calculating the sewer user charges assessed against the plaintiffs’ properties, we now turn to the merits of the plaintiffs’ argument. The plaintiffs argue that because the defendant failed to calculate the plaintiffs’ sewer user charges on the basis of actual sewer discharge, the sewer user charges are not authorized by § 23-83 (b). Although we recognize that the defendant’s method of calculation does not comply precisely with the language of § 23-83 (b), we are unpersuaded.

The defendant concedes that it did not consider actual sewer discharge in calculating the plaintiffs’ sewer user charges. As previously stated, the defendant calculated the plaintiffs’ sewer user charges according to the minimum sewer user charge provided for by § 23-83 (b). The only consequence of calculating the plaintiffs’ sewer user charges according to a literal reading of § 23-83 (b), therefore, would be that their charges might be increased because some of the residential users for whose sewer user charges the plaintiffs, as property-owners, are responsible, might in fact be ascribed more than one modified equivalent unit. Because each of the plaintiffs was charged the minimum sewer user charge contemplated by § 23-83 (b), it is not possible that calculation of their charges according to actual sewer discharge would result in a lower charge. Thus, although the defendant failed to comply precisely with § 23-83 (b), the plaintiffs cannot be heard to complain of the defendant’s noncompliance, which has not harmed them and may in fact have inured to their benefit.

II

The plaintiffs next claim that the trial court should have concluded that the defendant’s method of calculating sewer user charges is not authorized by § 7-255 (a). In support of this elaim, the plaintiffs argue that because the factors set forth in § 7-255 (a) pertaining to the establishment of sewer user charges focus primarily on contribution to a sewer system, the defendant was required to calculate the plaintiffs’ sewer user charges on the basis of their actual sewer discharge. This claim warrants little discussion.

Section 7-255 (a) provides in pertinent part: “The water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage system. ... In establishing or revising such charges the water pollution control authority may classify the property connected or to be connected with the sewer system and the users of such system, including categories of industrial users, and may give consideration to any factors relating to the kind, quality or extent of use of any such property or classification of property or users including, but not limited to, (1) the volume of water discharged to the sewerage system, (2) the type or size of building connected with the sewerage system, (3) the number of plumbing fixtures connected with the sewerage system, (4) the number of persons customarily using the property served by the sewerage system, (5) in the case of commercial or industrial property, the average number of employees and guests using the property and (6) the quality and character of the material discharged into the sewerage system. The water pollution control authority may establish minimum charges for connection with and for the use of a sewerage system.” (Emphasis added.)

The plaintiffs ignore the plain language of § 7-255 (a), which is dispositive of their second claim. In calculating sewer user charges, the defendant is permitted to consider factors relating to a user’s sewer contribution. Nonetheless, consideration of such factors is not required. Moreover, the defendant may establish minimum charges for use of the sewer system. We conclude, therefore, that § 7-255 (a) does not require the defendant to consider actual sewer discharge in calculating sewer user charges and does therefore authorize the method of calculating sewer user charges employed by the defendant.

The judgments are affirmed.

In this opinion the other justices concurred.

       Milford Code of Ordinances § 23-83 provides in pertinent part: “(a) Each user shall pay for the [sewer] services provided by the city based on his use of the treatment works as determined by its equivalent units.
      “(b) For residential, industrial, institutional and commercial users, user charges will be based on actual water usage. If a residential, commercial, institutional or industrial user has a consumptive use of water or, in some other manner, uses water which is not discharged into the wastewater collection system, the user charge for that contributor shall be based on modified equivalent units.”

       General Statutes § 7-255 (a) provides: “The water pollution control authority may establish and revise fair and reasonable charges for connection with and for the use of a sewerage system. The owner of property against which any such connection or use charge is levied shall be liable for the payment thereof. Municipally-owned and other tax-exempt property which uses the sewerage system shall be subject to such charges under the same conditions as are the owners of other property, but nothing herein shall be deemed to authorize the levying of any property tax by any municipality against any property exempt by the general statutes from property taxation. No charge for connection with or for the use of a sewerage system shall be established or revised until after a public hearing before the water pollution control authority at which the owner of property against which the charges are to be levied shall have an opportunity to be heard concerning the proposed charges. Notice of the time, place and purpose of such hearing shall be published at least ten days before the date thereof in a newspaper having a general circulation in the municipality. A copy of the proposed charges shall be on file in the office of the clerk of the municipality and available for inspection by the public for at least ten days before the date of such hearing. When the water pollution control authority has established or revised such charges, it shall file a copy thereof in the office of the clerk of the municipality and, not later than five days after such filing, shall cause the same to be published in a newspaper having a general circulation in the municipality. Such publication shall state the date on which such charges were filed and the time and manner of paying such charges and shall state that any appeals from such charges must be taken within twenty-one days after such filing. In establishing or revising such charges the water pollution control authority may classify the property connected or to be connected with the sewer system and the users of such system, including categories of industrial users, and may give consideration to any factors relating to the kind, quality or extent of use of any such property or classification of property or users including, but not limited to, (1) the volume of water discharged to the sewerage system, (2) the type or size of building connected with the sewerage system, (3) the number of plumbing fixtures connected with the sewerage system, (4) the number of persons customarily using the property served by the sewerage system, (5) in the case of commercial or industrial property, the average number of employees and guests using the property and (6) the quality and character of the material discharged into the sewerage system. The water pollution control authority may establish minimum charges for connection with and for the use of a sewerage system. Any person aggrieved by any charge for connection with or for the use of a sewerage system may appeal to the superior court for the judicial district wherein the municipality is located and shall bring any such appeal to a return day of said court not less than twelve or more than thirty days after service thereof. The judgment of the court shall be final.”

       In their brief, the plaintiffs also renewed their claim that if the defendant’s method of assessment is authorized by § 23-83 of the Milford Code of Ordinances, the ordinance is invalid. Relying on Pepin v. Danbury, 171 Conn. 74, 85, 368 A.2d 88 (1976) (regarding special benefit assessments levied pursuant to General Statutes § 7-249), the plaintiffs argued that the use assessments levied against their properties are invalid because the value of the assessments exceeds the benefit accruing to their properties. At oral argument before this court the plaintiffs twice stated, however, that they do not challenge the validity of the ordinance. We conclude, therefore, that the plaintiffs have abandoned their claim of invalidity. See Pokorny v. Getta’s Garage, 219 Conn. 439, 448-49 n.9, 594 A.2d 446 (1991).

       For each of the 1989-90 and 1990-91 fiscal years, the defendant calculated sewer user charges at the rates of $122.40 and $143.52 per modified equivalent unit, respectively. A “modified equivalent unit” is defined as “discharge to municipal sewer in gallons per day divided by two hundred thirty-two (232) gallons per day, rounded up to the nearest whole number.” Milford Code of Ordinances § 23-81 (q).

       The legal notice published by the defendant establishing a sewer user charge for the 1989-90 fiscal year provides in pertinent part: “In accordanee with the requirements of Sections 23-80 through 23-86 of the Code of Ordinances of the City of Milford the Board of Sewer Commissioners has established the Sewer User Charge at $122.40 per modified equivalent unit for fiscal year 1989-1990.
      “The modified equivalent unit is defined in Section 23-81, paragraph (q) of the ordinances, and is the charge applicable to all single family residences, apartments, condominium units and to individual stores and storage facilities, and offices up to 3,000 square feet. It is also the minimum charged per connection for all other classes of users. Larger users will be charged for the total number of modified equivalent units used, rounded up to the nearest whole number.”
      With the exception of a different dollar figure and a different fiscal year, the pertinent portion of the legal notice published by the defendant establishing a sewer user charge for the 1990-91 fiscal year is the same as above.

       Section 23-81 (e) of the Milford Code of Ordinances provides: “ ‘Residential user’ shall mean any contributor to the city’s treatment works whose lot, parcel or real estate, or building is used for domestic dwelling purposes only and will be considered one (1) equivalent user.”

       A consumptive use of water is a use of water that does not result in discharge to the sewer system. Such uses include drinking water and watering a lawn.

       Having calculated the plaintiffs’ sewer user charges on the basis of the minimum number of modified equivalent units applied per residential user, the assessments of sewer user charges against the plaintiffs’ properties are the lowest assessments that could have been levied. Thus, absent a challenge to the defendant’s treatment of each apartment as one residential user, the plaintiffs’ claim that they were overcharged and that their charges should be reassessed is illogical.

       According to the evidence presented by the defendant to the trial court, every connection to both the water supply and the sewer system causes leakage into the system. Even connections with shutoff valves exhibit some amount of leakage. This evidence was not challenged by the plaintiffs. On the basis of the facts in the record, therefore, it is undisputed that even vacant apartments are properly viewed as contributors to the city’s treatment works.

       Because our conclusion that the plaintiffs’ second argument is without merit rests upon our determination that the plaintiffs have failed to show any harm stemming from the defendant’s aetion, at first glance, the trial court’s jurisdiction to entertain this appeal may appear subject to question. See General Statutes § 7-255 (a) (any party aggrieved by an assessment may appeal to the Superior Gourt). We conclude, however, that the trial court’s jurisdiction is not implicated by our conclusion.
      In light of their implicit assertion that the defendant improperly regarded each apartment as one residential user and that, as a result, the sewer user charges assessed are excessive, the plaintiffs adequately assert that their personal and legal interests have been specially and injuriously affected by the actions of the defendant and that, therefore, they are aggrieved within the meaning of § 7-255 (a). See Milford v. Local 1566, 200 Conn. 91, 96, 510 A.2d 177 (1986); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978). The trial court relied upon this implicit assertion for its finding that the plaintiffs are aggrieved.


text:
    Covenant Insurance Company v. Ernestine Coon et al.
    (14246)
    Peters, C. J., Glass, Covello and Santaniello, Js.

    Argued May 30
    decision released August 6, 1991

      Eugene A. Cooney, with whom, on the brief, was Rodd J. Mantell, for the appellant (plaintiff).

      Kathleen S. Mass, with whom, on the brief, was Vincent R. Falcone, for the appellee (named defendant).

      James J. Carroll, for the appellee (defendant North River Insurance Company).

         The parties have agreed to have this case decided by four justices.

   Covello, J.

This is an appeal from a judgment of the trial court denying the plaintiffs application to vacate an arbitration award. The issues on appeal are: (1) whether in determining if a vehicle is “underinsured” within the meaning of General Statutes § 38a-336 (d), the limit of a tortfeasor’s liability insurance is construed to be the policy’s per accident limit or per person limit; and (2) whether underinsured motorist coverage under separate policies covering the victim may be “stacked” for the purposes of determining if a vehicle is underinsured.

The trial court found the following facts. On December 7, 1985, Ernestine Coon, a passenger in a vehicle owned and operated by Robert Sabo, sustained injuries when the Sabo vehicle was struck by a vehicle owned and operated by Anthony Sacco. The accident was solely Sacco’s fault. At the time of the accident, Coon owned an insurance policy issued by North River Insurance Company (North River) with underinsured motorist coverage of $20,000. Sabo owned a policy issued by the plaintiff, Covenant Insurance Company (Covenant) providing underinsured motorist coverage of $50,000. Sacco had liability insurance through Aetna Insurance Company (Aetna) with liability limits of $25,000 per person and $50,000 per accident. Aetna paid Coon $25,000. Because the value of her injuries exceeded $25,000, Coon sought additional recovery from North River and Covenant pursuant to the under-insured motorist provisions of those policies.

Unable to agree that the Sacco vehicle was an underinsured vehicle within the meaning of General Statutes § 38a-336 (d), the parties submitted that issue to arbitration. In order to determine whether the vehicle was underinsured, the arbitrators “stacked” the $50,000 Covenant and the $20,000 North River underinsured motorist limits to arrive at a total underinsured limit of $70,000. They compared the $70,000 coverage thus calculated against the $25,000 available under Sacco’s liability insurance. They concluded that because the $70,000 uninsured motorist coverage was greater than the $25,000 liability coverage, the Sacco vehicle was therefore an “underinsured vehicle” within the meaning of § 38a-336 (d). The arbitrators thereafter awarded Coon $45,000 for her injuries above the $25,000 already paid by Aetna; $32,142.86 from Covenant and $12,857.14 from North River.

Covenant and North River applied to vacate the award in Superior Court claiming, not that the award was excessive, but that the Sacco vehicle was not an underinsured vehicle within the meaning of General Statutes § 38a-336 (d) and therefore that the under-insured motorist provisions of the two policies were not applicable to Coon’s claims. Specifically, they argued that (1) the underinsured motorist limits in the two separate policies should not be stacked in determining whether the Sacco vehicle was underinsured, and (2) the arbitrators should have used the $50,000 per accident liability limit and not the $25,000 per person limit in comparing the tortfeasor’s liability insurance coverage with the victim’s underinsured motorist coverage. The trial court concluded that, for the purpose of making the comparison required by § 38a-336 (d), stacking of the underinsured motorist coverage was permitted and that the $25,000 available to Coon under the Aetna policy represented the liability insurance limits. The trial court therefore denied the application to vacate the arbitration award. Covenant appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 4023.

I

Covenant first claims that the arbitrators improperly determined that the Sacco vehicle was underinsured. Specifically, it argues that, in determining whether the Sacco vehicle was underinsured within the meaning of § 38a-336 (d), the amount of liability insurance on the Sacco vehicle was the $50,000 per accident limit and not the $25,000 per person limit. We disagree.

Application of § 38a-336 involves two separate inquiries. First, it must be determined whether the tortfeasor’s vehicle is an “underinsured vehicle” within the meaning of the statute. Second, after this determination is made and underinsured motorist coverage is found to be applicable, the finder of fact calculates the amount of the award to be paid the victim.

An “underinsured vehicle” is defined in § 38a-336 (d) as “a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made . . . .” Thus, § 38a-336 requires that, in determining whether a motor vehicle is “underinsured” the total of all liability insurance coverage available to an individual claimant must be compared to the amount of underinsured motorist coverage in each of the policies against which the victim has a claim. If the total of the liability insurance is less than the uninsured motorist limits of the individual’s policy, then the uninsured motorist coverage becomes applicable.

Neither the text nor the legislative history of § 38a-336 addresses directly the circumstance in which the tortfeasor’s liability insurance policy has two different liability limits. We have, however, previously concluded that in determining the tortfeasor’s liability limit for the purposes of the § 38a-336 (d) comparison, we must examine the amount “of liability insurance [that is] available to [the victims\.” (Emphasis added.) American Motorists Ins. Co. v. Gould, 213 Conn. 625, 633, 569 A.2d 1105 (1990). Here, even though Sacco had $50,000 per accident liability limits, Coon never had more than $25,000 of this coverage potentially available to her. Thus, it is consistent with our earlier interpretation of § 38a-336 to conclude that the total of the per person limit is the amount of liability insurance available to the claimant, i.e., $25,000.

II

Covenant next claims that, even if the per person liability limit is adopted for the purposes of the § 38a-336 (d) comparison, the arbitrators should not have stacked the underinsured motorist coverage from two different policies covering the victim in determining whether the Sacco vehicle was an underinsured vehicle. The plaintiff specifically argues that the arbitrators improperly combined the $20,000 in underinsured motorist insurance available under the North River policy and the $50,000 in underinsured motorist insurance available under the Covenant policy to arrive at the $70,000 total underinsured motorist coverage. We agree.

In the context of determining the final award to be paid the victim, we have said that “[w]hile General Statutes § [38a-336] . . . does not specifically address the issue of ‘stacking’ coverage ... a fair reading of the statute discloses no prohibition against such aggregations.” Cohn v. Aetna Ins. Co., 213 Conn. 525, 529, 569 A.2d 541 (1990). In making the initial determination of whether a tortfeasor’s vehicle is underinsured, however, § 38a-336 (d) states that “an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all .. . policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made . . . .” (Emphasis added.) Thus, in making the initial determination whether a vehicle is underinsured, § 38a-336 clearly states that the aggregate of the liability limits under all of the tortfeasor’s policies are to be compared with the uninsured motorist coverage limit of the policy against which a claim is made. The statute unequivocally refers to the liability provisions in the plural but the uninsured motorist provisions in the singular. Consequently, the analysis directed by § 38a-336 requires a comparison between the aggregate of liability limits available to the victim against the underinsured motorist limits in each single policy against which the victim has a claim.

Coon claims that in making previous underinsured motorist analyses, we have compared the total of all liability policies insuring the tortfeasor’s vehicle against the total of all underinsured motorist policies insuring the victim. American Motorists Ins. Co. v. Gould, 213 Conn. 625, 630, 569 A.2d 1105 (1990). The defendant further argues that we have sanctioned “the ‘stacking’ of uninsured motorist coverages in situations involving separate and distinct policies that were both applicable to a given claim (interpolicy ‘stacking’).” Cohn v. Aetna Ins. Co., 213 Conn. 525, 528, 569 A.2d 541 (1990). Coon’s argument overlooks the fact that in Cohn, and other cases discussing interpolicy stacking, we have permitted interpolicy stacking only in the context of making a determination of the amount of the award to be paid the victim. We have not, however, allowed interpolicy stacking to be interjected into the initial determination whether a tortfeasor’s vehicle is underinsured and thus whether the underinsured policy provisions apply at all.

The application of § 38a-336 requires two distinct steps: (1) determining whether a vehicle is in fact under-insured, so that coverage is available; and (2) calculating the amount of the actual award due the victim. The statute does not prohibit stacking of coverage in determining the total amount of the award due the victim. The statute is unequivocal, however, in establishing the mechanism for determining whether a vehicle is underinsured, and it specifically limits consideration of underinsured motorist coverage to each policy separately. Farm & City Ins. Co. v. Stevens, 215 Conn. 157, 161, 574 A.2d 1300 (1990) (stacking of coverage of separate vehicles listed under single policy permitted). While our holding in Gould could be interpreted as stating that the underinsured motorist provisions of different policies could be stacked in making the initial determination whether a tortfeasor’s vehicle is underinsured, such a construction is inconsistent with the express language of the statute and, to the extent that Gould implied otherwise, we now hold to the contrary.

In the context of this case, the initial question is whether the Sacco vehicle is underinsured with respect to the two underinsured motorist provisions of the policies against which claim is made. As directed by the statute, this analysis must be undertaken with respect to each policy. As concerns North River, the tortfeasor’s liability limit of $25,000 exceeds the under-insured motorist coverage of $20,000. The Sacco vehicle is therefore not underinsured with respect to this policy and therefore Coon has no claim against North River. With respect to Covenant, however, Sacco’s $25,000 liability limit does not exceed the $50,000 in under-insured motorist coverage available under the policy and therefore the Sacco vehicle is underinsured with respect to the Covenant policy.

Ill

We next address the separate question of how much is due Coon. Section 38a-336 (b) states: “An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage . . . but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.” Thus the $50,000 available under the Covenant policy forms an upper limit beyond which the victim cannot recover from Covenant. The recovery from Covenant therefore must be reduced by the $25,000 already paid to the victim from the Aetna policy. The total recovery for the victim from Covenant is thus $50,000 minus $25,000, or $25,000.

The judgment is reversed and the case is remanded with direction to render judgment in accordance with this opinion.

In this opinion the other justices concurred.

       “ ‘Stacking’ refers to the ability of the insured, when covered by more than one insurance policy, to obtain benefits from a second policy on the same claim when recovery from the first policy alone would be inadequate.” Nationwide Ins. Co. v. Gode, 187 Conn. 386, 388 n.2, 446 A.2d 1059 (1982).

       Uninsured motorist coverage provides “protection against operators of uninsured and underinsured motor vehicles, as well as insured motor vehicles whose insurers become insolvent.” American Motorists Ins. Co. v. Gould, 213 Conn. 625, 628, 569 A.2d 1105 (1990). We have held that statutory provisions applying to uninsured motorist policies apply equally to underinsured motorist situations. Id.

       General Statutes § 38a-336 (d), formerly § 38-175c, states: “For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       We note that even though American Motorists Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), involved a different factual context, in that opinion we compared the uninsured motorist limit against the amount of liability insurance potentially available to the victims. This is consistent with our holding in Harvey v. Travelers Indemnity Co., 188 Conn. 245, 248-49, 449 A.2d 157 (1982), in which we interpreted our uninsured motorist statute from the perspective of the person covered.

       We recognize that in the interpretation of statutes, singular terms may have a plural meaning. The statute in this case, however, is not ambiguous and it would contravene the clear terms of the statute to read “the policy” to mean “the policies.” Furthermore, the fact that the legislature used both plural and singular terms in the statute is a strong indication that the use of the singular was deliberate. To the extent that we implied otherwise in Nationwide Ins. Co. v. Gode, 187 Conn. 386, 394, 446 A.2d 1059 (1982), we now hold to the contrary.


author: Shea, J. Glass, J.,

text:
    State of Connecticut v. Sherman Cofield
    (13994)
    Peters, C. J., Shea, Callahan, Glass, Covello, Borden and Santaniello, Js.
    Argued May 30
    decision released August 6, 1991

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, was John T. Redway, state’s attorney, for the appellant (state).

      Temmy Ann Pieszak, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellee (defendant).
   Shea, J.

After the trial court, Stengel, J., had denied his motion to suppress evidence, the defendant, Sherman Cofield, entered a conditional plea of nolo contendere pursuant to General Statutes (Rev. to 1987) § 54-94U to the charges of possession of narcotics with

intent to sell, possession of marihuana and interfering with an officer, in violation of General Statutes (Rev. to 1987) §§ 21a-277 (a), 21a-279 (c) and 53a-167a respectively. Thereafter, the trial court, R. O’Connell, J., found the defendant guilty as charged and sentenced him to the custody of the commissioner of correction for a term of three years and nine months. The defendant appealed from the judgment of conviction to the Appellate Court, claiming that the evidence was the fruit of an unlawful seizure by the police, and that the trial court, therefore, should have granted his motion to suppress. The Appellate Court concluded that the police did not have a reasonable and articulable suspicion that would justify the stop and therefore reversed the judgment of the trial court. State v. Cofield, 22 Conn. App. 10, 576 A.2d 156 (1990). Upon the granting of certification on three issues, the state appealed to this court.

The state claims that the Appellate Court should have concluded that the trial court properly denied the defendant’s motion to suppress. The state urges us to follow the United States Supreme Court’s recent decision in California v. Hodari D., 499 U.S. , 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), and conclude that at the time the pertinent evidence was obtained, the defendant had not been seized and that, therefore, the evidence was not the fruit of an unlawful seizure. In the alternative, the state asserts that, even if the defendant had been seized, the seizure was justified by the investigating police officer’s reasonable and articulable suspicion that the defendant had engaged in criminal activity. We conclude that the police had a reasonable and articulable suspicion that justified a brief detention of the defendant, and that, therefore, the evidence seized was the product of a lawful seizure. Accordingly, without addressing the issue of whether there was a seizure, we reverse the judgment of the Appellate Court.

At the hearing on the defendant’s motion to suppress, the trial court could reasonably have found the following facts. On the evening of November 21, 1987, the defendant drove a friend to the Maplewood Terrace housing project in Middletown. The defendant parked his car, a 1988 white Pontiac LeMans, in the rear of a partially lit and nearly full parking lot designated as parking lot number three. The defendant’s car was facing the road. After his friend left the car, the defendant met two other males with whom he was acquainted and they entered his car.

On the same evening, Sergeant Frank Violissi, a seventeen year veteran of the Middletown police department and the police officer in charge of the department’s street crime unit, received a telephone call from a confidential informant who had provided him with useful information in the past that had led to narcotics arrests. The informant told Violissi that a black male was selling drugs at Maplewood Terrace. Violissi and two members of the street crime unit drove in an unmarked car and met with the informant a short distance from Maplewood Terrace. Violissi arranged for the informant to make a controlled buy of narcotics from the alleged seller.

About fifteen minutes later, the informant returned with what appeared to Violissi to be cocaine. The informant told the officers that he had purchased the drugs from a black male named Sonny who was wearing a red hat and was seated in the driver’s seat of a 1987 blue Chevrolet Beretta with two other male passengers. The informant did not indicate the car’s shade of blue. The informant told Violissi that the car was parked in the rear of parking lot number three and was facing the road.

Violissi and the other officers drove to parking lot number three. The officers watched the defendant’s car for about thirty seconds from a distance of fifteen to twenty feet and saw no suspicious activity. Violissi did not notice any blue cars or other occupied cars in the parking lot. He believed the defendant’s car was the car described to him by the informant. The officers then backed up their car and parked about thirty-five feet behind the defendant’s car. Violissi and one of the officers, both dressed in plain clothes with badges on chains around their necks, decided to approach the defendant’s car to corroborate further the information supplied by the informant. On the basis of his experience in the Maplewood Terrace area, Violissi believed himself to be entering a life threatening situation. He therefore drew his gun and carried it by his side as he approached the defendant’s car.

When Violissi reached the rear of the car on the driver’s side, the defendant looked into his outside rearview mirror and saw a man with a gun rapidly approaching his door. He turned around and looked at Violissi through the car window. The defendant then exited his car, pushed Violissi, and began throwing things from his clothing. Violissi testified that he recognized the items as money and contraband. He identified himself as a police officer and grabbed the defendant with his left hand. A struggle ensued. Additional police officers arrived to assist Violissi and the defendant was arrested along with the other occupants of the car.

In reviewing the Appellate Court’s reversal of the trial court’s finding that a brief detention of the defendant was justified by the police officer’s reasonable and articulable suspicion of criminal activity, we undertake a two-part analysis. First, we ascertain whether the trial court’s underlying factual findings were clearly erroneous. State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see Practice Book § 4061. Second, in light of the facts found by the trial court, we determine whether the Appellate Court was correct in concluding that the police officer lacked a reasonable and articulable suspicion of criminal activity on which to base his initial investigative approach to the defendant’s car. “The trial court’s conclusions must stand unless they are legally and logically inconsistent with the facts.” State v. Torres, supra; State v. Lasher, 190 Conn. 259, 267, 460 A.2d 970 (1983). We conclude that the trial court’s determination that Violissi had a reasonable and articulable suspicion that the defendant was the person described by the informant is supported by the facts found by the court from the evidence. Accordingly, we reverse the Appellate Court.

It is well established that the fourth amendment to the United States constitution allows a police officer to detain an individual briefly for investigative purposes if the officer has a “reasonable and articulable suspicion” that the individual is engaged in criminal activity. Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412,110 L. Ed. 2d 301 (1990); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); State v. Mitchell, 204 Conn. 187, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). The police officer’s decision to do so must be based on more than hunch or speculation. “In justifying the particular intrusion 'the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ Terry v. Ohio, supra, 21.” State v. Januszewski, 182 Conn. 142, 148-49, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981). A recognized function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985).

In evaluating the validity of such a stop, courts consider whether, in light of “the totality of the circumstances—the whole picture,” the police officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); State v. Mitchell, supra, 195. When, as in this case, an officer’s decision to detain a suspect briefly is based on information received from an informant, the task of the reviewing court is akin to a probable cause determination. In the probable cause context, we have recently departed from the “two-pronged test” of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), in favor of the “totality of the circumstances” approach of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). State v. Barton, 219 Conn. 529, 594 A.2d 917 (1991). Just as we made clear in Barton that the informant’s “veracity,” “reliability,” and “basis of knowledge” remain “highly relevant”; id., 539-40; “[t]hese factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard.” Alabama v. White, supra, 328-29.

As a threshold matter, we assume that the defendant was seized for the purpose of an investigative detention at some point before he discarded the contraband, and that his rights under the fourth and fourteenth amendments were therefore implicated. The remaining question is whether the police officer had sufficient justification to warrant the detention of the defendant.

At the suppression hearing, the trial court found that the informant was credible and reliable, that Violissi had been able to corroborate the information he had received, and therefore, that he had a reasonable and articulable suspicion of criminal activity that justified detaining the defendant for further investigation. Consequently, the trial court denied the defendant’s motion to suppress the evidence seized. On appeal, a divided panel of the Appellate Court reversed, finding “that the obvious discrepancies between the informant’s description and the situation found by the police rendered the officer’s suspicion speculative and unreasonable.” State v. Cofield, supra, 20. The majority concluded that the police did not have a reasonable and articulable suspicion that would justify the stop. Id., 20-21. Viewing the totality of the circumstances in this case, we conclude that the informant had supplied Violissi with information that had sufficient indicia of reliability and corresponded adequately to his observations in the parking lot to provide him with reasonable and articulable suspicion sufficient to justify approaching the defendant’s car for further investigation.

The trial court found that the informant had been known to Violissi for about eight months, and had recently provided information regarding narcotics activities that had led to narcotics arrests and seizures. The trial court also found that Violissi had corroborated the information given by the informant to some extent. As anticipated, Violissi found the car in the third of four parking lots of Maplewood Terrace, in the rear of that lot, facing the street. Moreover, the car was new, its driver was a black male and two other male occupants were present, as the informant had stated. Although “[a]ny one of these factors is not by itself proof of illegal conduct,” taken together “they amount to reasonable suspicion.” United States v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). Therefore, the trial court was justified in concluding that the informant was credible and the information he gave Violissi was reliable.

Although acknowledging that the informant had previously supplied reliable information, the majority of the Appellate Court found it “improbable that, having given such a detailed description [of the car], the informant would have been mistaken as to every detail” of the car’s “color, make, model and year.” State v. Cofield, supra, 20. The issue, however, is not whether the informant was correct. The issue is whether Violissi’s suspicions should have been dispelled by the discrepancies between the car the informant described and the defendant’s car. “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, supra, 330.

At the hearing, Violissi testified that he believed the defendant’s car was in fact the car the informant described. He admitted that he did not know the difference between different car makes and models. The only discrepancy from the information given by the defendant that he noted was in the color of the car. Violissi attributed this discrepancy to the effect of the lighting conditions, which might have caused the informant to misperceive the color white as light blue. The presence of discrepancies in an informant’s account does not necessarily undermine the reasonable suspicion of the police. In Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972), the United States Supreme Court found that an unverified tip from a known informant was sufficiently reliable to justify a Terry stop. On the basis of the information that Violissi was able to corroborate, he made the decision to investigate further.

The trial court credited Violissi’s version of the events leading up to the defendant’s arrest. The court made an express finding that Violissi lacked knowledge “of what different automobiles are.” The Appellate Court majority indicated its disbelief of Violissi’s testimony by suggesting that a reasonable police officer with seventeen years on the police force would have been familiar with different car makes and models and would not have confused a new Chevrolet Beretta with a new Pontiac LeMans. State v. Cofield, supra, 18. The majority, however, has misconstrued its function as a reviewing court. The determination of a witness’ credibility is the special function of the trial court. “This court cannot sift and weigh evidence.” State v. Cofield, supra, 26 (E. O’Connell, J., dissenting); Robert S. Weiss & Co. v. Mullins, 196 Conn. 614, 621, 495 A.2d 1006 (1985); State v. Staples, 175 Conn. 398, 407, 399 A.2d 1269 (1978).

In this close case the trial court might well have determined the facts differently and thus concluded that Violissi lacked the reasonable and articulable suspicion necessary to justify the detention of the defendant. Nevertheless, “[t]he factfinding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties, which is not fully reflected in the cold, printed record which is available to us.” Lupien v. Lupien, 192 Conn. 443, 445, 472 A.2d 18 (1984). Our review of the record shows that in light of the facts found by the trial court, Violissi was not acting on a whim or speculation, but upon his reasonable suspicion, sufficiently articulated in his testimony, that the defendant’s car was the car described by the informant. Thus, we hold that the trial court properly concluded that the information provided by the informant, as corroborated by Violissi’s observations, was sufficient to raise such a suspicion and to justify an investigative detention.

Our conclusion that the Appellate Court incorrectly reversed the trial court’s determination that a reasonable and articulable suspicion of criminal activity existed makes it inappropriate for us to consider the federal and state constitutional issues raised by California v. Hodari D., supra. “ ‘Constitutional issues are not considered unless absolutely necessary to the decision of a case.’ State v. DellaCamera, 166 Conn. 557, 560-61, 353 A.2d 750 [1974]; 16 Am. Jur. 2d, Constitutional Law, §§ 111, 113; see Pi v. Delta, 175 Conn. 527, 534, 400 A.2d 709 [1978]; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 [1936] (Brandeis, J., concurring).” State v. Onofrio, 179 Conn. 23, 37-38, 425 A.2d 560 (1979). Therefore, we decline to address these constitutional issues. See Alexander v. Robinson, 185 Conn. 540, 548, 441 A.2d 166 (1981).

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

In this opinion Peters, C. J., Callahan, Covello, Borden and Santaniello, Js., concurred.

Glass, J.,

dissenting. While unsuspiciously sitting in his 1988 white Pontiac LeMans in a Middletown “high crime” area, the defendant was as equally entitled to the constitutional freedom from unreasonable governmental curtailment of his personal liberty as a Connecticut citizen in any other area of this state. Many of our less fortunate citizens are forced to establish their homes in or near locales of criminal repute, or they travel to such places to call upon friends or engage in an infinite range of innocuous human activities. Because the “ ‘high crime area’ factor is not an ‘activity’ of an individual”; People v. Bower, 24 Cal. 3d 638, 645, 597 P.2d 115, 156 Cal. Rptr. 856 (1979); the crime rate of a particular area cannot transform “otherwise innocent-appearing circumstances into circumstances justifying the seizure of an individual.” Id. A history of past criminal activity in a locality “does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality.” People v. Aldridge, 35 Cal. 3d 473, 479, 674 P.2d 240, 198 Cal. Rptr. 538 (1984); see United States v. Torres-Urena, 513 F.2d 540, 542-43 (9th Cir. 1975).

As the majority acknowledges, Sergeant Frank Yiolissi detected “no suspicious activity” while he watched the defendant in the well lighted parking lot number three of Maplewood Terrace. Violissi also did not see a red hat on the defendant’s head, reportedly there some fifteen minutes earlier, nor did Violissi see the defendant in the driver’s seat of a 1987 blue Chevrolet Beretta, although he testified that he had “[j]ust looked in the parking lot” for a car of that year, color, make and model. What Violissi did see after a thirty second observation from ten to fifteen feet was the hat-less black defendant in a 1988 white car, clearly and visibly marked with the make and model “Pontiac LeMans,” in the “general area” wherein the informant had recounted that a black man had been selling “large amounts of cocaine.” Given the fact that black and Hispanic persons predominantly inhabit Maplewood Terrace, it was not, as Violissi agreed in court, “an unusual event to find a car with black people sitting in it in a parking lot at Maplewood Terrace.” Neither, presumably, was it unique to behold a new car in one of nearly fifteen spaces aligning the road in lot number three of Maplewood Terrace, which Violissi testified had been “full of cars.” Notwithstanding the unremarkable and unsuspicious scene that Violissi encountered there, and despite the conspicuous absence of the only significant descriptive details that would have set the drug dealer that he sought apart from inculpable individuals in the vicinity, Violissi, indulging the “gut feeling” admittedly engendered by his experiences in and the reputation of Maplewood Terrace, impulsively drew his gun and seized the defendant.

In the name of deference to the trial court’s demeanor determinations, the majority exonerates Violissi for his failure to comprehend the vital omissions in that scene on the grounds that he truthfully-testified that the “only discrepancy he noted” between what he had seen in parking lot number three and what he had been informed that he would see “was in the color of the car,” which he credibly claimed that he had attributed “to the effect of the lighting conditions which might have caused the informant [possibly to] misperceive the color white as light blue,” and further, that he sincerely stated that he “did not know the difference between different car makes and models” and “believed the defendant’s car was in fact the car the informant described.” The issue in the present case is not, however, whether Violissi subjectively suspected the defendant of wrongdoing or honestly believed that the car he had observed was that of the drug dealer described by the informant. Even assuming that the trial court properly found Violissi’s suspicions to have been truly harbored, the question of law before this court is whether “the facts available to [Violissi] at the moment of the seizure . . . [would] ‘warrant a man of reasonable caution in the belief that the action taken was appropriated” (Emphasis added.) Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). If “subjective good faith” on the part of a detaining officer “alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers and effects,’ only in the discretion of the police.” Id., 22.

The dictates of the fourth and fourteenth amendments to the United States constitution constrained Violissi to make a reasoned, “common sense” assessment of “all of the circumstances” available to him; United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981); and proscribed his seizure of any person at Maplewood Terrace unless that assessment of the “whole picture” yielded “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. Having previously urged the informant “to go in and get as much details as possible and to come back and supply us with that information,” and, having obtained precisely what he had requested, Violissi entered the designated parking area of Maplewood Terrace in possession of particularized and objective facts that afforded him a reasonable basis for suspecting that a black man wearing a red hat and sitting in the driver’s seat of a 1987 blue Chevrolet Beretta was engaged in the criminal activity of selling cocaine. Yet, after “get[ting] in real close” to the defendant’s car purportedly “to corroborate what the confidential informant told us,” Violissi heedlessly overlooked the conspicuous absence of the most particularized and distinctive facts of the lot. He irrationalized away the sole discrepancy that he noted, moreover, on the ground that the informant, whom he had known to have been close enough to the suspected vehicle to purchase drugs from its driver, and, in addition, to report back that “[i]t had blue interior,” may have mistaken the color of the car in the well lighted parking area.

The facts available to Violissi at the moment he seized the defendant, in my view, hardly would have warranted a man of reasonable caution in the belief that the action taken was appropriate. See Terry v. Ohio, supra. If the United States constitution condones such seizures of Connecticut citizens, founded upon hunch and in credibly imprudent indifference to particularized information readily at hand, the “ ‘demand for specificity in the information upon which police action is predicated [that] is the central teaching of . . . Fourth Amendment jurisprudence’ (emphasis omitted) United States v. Cortez, supra, 418; is meaningless indeed.

Accordingly, I respectfully dissent.

       General Statutes (Rev. to 1987) § 54-94a provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”

       General Statutes (Rev. to 1987) § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned.”
      General Statutes (Rev. to 1987) § 21a-279 (c) provides: “Any person who possesses or has under his control any quantity of any controlled substance other than a narcotic substance, or a hallucinogenic substance other than marihuana or who possesses or has under his control less than four ounces of a cannabis-type substance, except as authorized in this chapter, may be fined not more than one thousand dollars, or be imprisoned not more than one year, or be both fined and imprisoned; and for a subsequent offense may be imprisoned not more than five years, or fined not more than three thousand dollars or be both fined and imprisoned.”
      General Statutes (Rev. to 1987) § 53a-167a provides in pertinent part: “A person is guilty of interfering with an officer when he obstructs, resists, hinders or endangers any peace officer or fireman in the performance of his duties.”

       Although the defendant did not specify in his motion the items he sought to have suppressed, the defendant and the state agreed at the hearing that the motion covered all items the state would have sought to introduce at the defendant’s trial, including items taken from the defendant’s person, the interior of his car and the area surrounding his car.

       We granted the state’s petition for certification to appeal limited to the following issues:
      “1. Did the Appellate Court correctly find a fourth amendment seizure in the absence of the intentional acquisition of physical control over the defendant by the police?
      “2. Alternatively, where a police officer was walking parallel to and had reached the exterior rear of the car in which the defendant was seated, with a drawn gun that was held at his side but not pointed, did the Appellate Court properly hold that from the perspective of a reasonable person the display of the weapon converted this approach into a detention?
      “3. Assuming, arguendo, that the defendant was seized, should the Appellate Court have reversed the trial court’s finding that the seizure was justified by reasonable and articulable suspicion of criminal activity when it failed to defer to the trial court’s factual determinations?” State v. Cofield, 215 Conn. 813, 576 A.2d 542 (1990).

       In California v. Hodari D., 499 U.S. , 111 S. Ct. 1547,113 L. Ed. 2d 690 (1991), the United States Supreme Court held that in the absence of “a laying on of hands or application of physical force to restrain movement”; id., 1550; a fourth amendment “seizure” requires a show of police authority that: (1) conveys a message to a reasonable person that he is not free to leave; id.; and (2) results in “submission to the assertion of authority.” (Emphasis in original.) Id., 1551.

       In State v. Lamme, 216 Conn. 172, 579 A.2d 484 (1990), we held that Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), is the law governing pre-arrest detentions under the Connecticut constitution.

       The fourth amendment to the United State constitution, made applicable to the states through the due process clause of the fourteenth amendment in Wolf v. Colorado, 338 U.S. 25, 28, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949), provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

       In Terry v. Ohio, 392 U.S. 1, 31, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), concurring Justice Harlan noted that a seizure “must be reasonable under the circumstances as the officer credibly relates them in court.”

       “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion.” (Emphasis added.) Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).