author: Callahan, J.

text:
    State of Connecticut v. Bryan D. Patterson
    (13538)
    Peters, C. J., Healey, Callahan, Covello and Hull, Js.

      Argued October 10, 1989
    decision released February 13, 1990

      JohnM. Massameno, assistant state’s attorney, with whom, on the brief, were JohnM. Bailey, state’s attorney, and Herbert G. Appleton, assistant state’s attorney, for the appellant (state).

      Michael J. McClary, with whom, on the brief, were Hugh F. Keefe, John J. Keefe and Charles E. Tiernan III, for the appellee (defendant).
   Callahan, J.

The issue in this appeal, taken by the state with permission of the trial court; see General Statutes § 54-96; is whether the trial court erred in dismissing charges of conspiracy to commit murder and conspiracy to commit capital felony pending against the defendant.

The record reveals that the defendant, Bryan D. Patterson, was arrested on July 23, 1987, pursuant to a warrant charging him with two counts of accessory to murder under General Statutes §§ 53a-54a (a) and 53a-8, one count of accessory to capital felony under §§ 53a-54b (8)1 ** and 53a-8, two counts of conspiracy to commit murder under §§ 53a-54a (a) and 53a-48 and one count of conspiracy to commit capital felony under §§ 53a-54b (8) and 53a-48. On May 26,1988, the state filed a substitute information charging the defendant with two counts of accessory to murder, with accessory to capital felony, with conspiracy to commit murder and with conspiracy to commit capital felony. That same date the state submitted the substitute information to the trial court, Kaplan, J., for a determination of probable cause in accordance with General Statutes § 54-46a. After a hearing, the trial court found that the state had failed to establish probable cause to continue the prosecution of the defendant on either the accessory counts or the conspiracy counts.

More particularly, the trial court found that the state had failed to present sufficient evidence to enable it to find probable cause to believe that the defendant knew that an alleged coconspirator, Eric Steiger, planned or intended to kill the two victims in this case, William Price and Daniel Seymour. The trial court concluded, therefore, that the state had not demonstrated probable cause of the defendant's intent to cause death, a prerequisite to the continuation of the prosecution under both the accessory to murder and the conspiracy to commit murder statutes. State v. Beccia, 199 Conn. 1, 3-4, 505 A.2d 683 (1986); State v. Teart, 170 Conn. 332, 336, 365 A.2d 1200 (1976).

After the trial court announced its decision, the state protested the trial court’s ruling on the conspiracy counts arguing that, because those charges did not carry possible penalties of death or life imprisonment, they did not require a determination of probable cause under § 54-46a in order for the state to continue their prosecution. The trial court, however, opined that it had been asked to make a probable cause determination as to all the counts in the information, conspiracy as well as accessory, that it had done so, and that the state was bound by its finding.

The state thereafter filed an information against the defendant dated June 14,1988, charging him with two counts of accessory to murder and one count of accessory to capital felony and moved for another hearing in probable cause under § 54-46a as to those charges only. The requested hearing was held by the trial court, Kline, J., on July 27, 1988. After the hearing, Judge Kline found no probable cause to continue the prosecution of the accessory charges.

On that same date, July 27, 1988, the state filed another information against the defendant, charging him only with the two conspiracy counts. In response, the defendant filed a motion to dismiss the conspiracy counts under General Statutes § 54-56, claiming that, because in both earlier proceedings the trial court had failed to find probable cause of an intent to cause death on the part of the defendant, the state should be foreclosed from continuing the prosecution of the conspiracy counts against him.

A hearing was held on the defendant’s motion to dismiss on August 8, 1988. Subsequent to the hearing, Judge Kaplan rendered an oral decision in which he concluded that, even if unnecessary, the state had submit-. ted the conspiracy charges to him for a determination of probable cause in the initial § 54-46a hearing and that he had correctly found that there was no probable cause to continue their prosecution. He also noted that Judge Kline had refused to find probable cause to continue the prosecution of the accessory charges at the second § 54-46a hearing because of a lack of evidence of the requisite intent to cause death on the part of the defendant. This was the same reason, he stated, that there was insufficient probable cause found at the first § 54-46a hearing to continue the prosecution of the conspiracy counts that were now the subject of the defendant’s motion to dismiss. Further, he observed that the state had offered no additional evidence of intent.

Judge Kaplan then stated in his decision that the hearing on the defendant’s motion to dismiss had become “[i]n effect . . . a Franks v. Delaware [438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)] type hearing.” This conclusion was apparently reached because testimony produced at the probable cause hearing before him led Judge Kaplan to believe that an averment in the arrest warrant affidavit “necessary for a finding of probable cause on the [key] issue of intent,” was false and misleading and had been made with a reckless disregard of the truth. He then concluded “that the two counts of conspiracy to commit murder, contained in the July 27th, 1988 information, filed against Bryan Patterson, [had] no basis because there [was] no intent to establish a conspiracy to commit murder and therefore, those two counts contained in that information are hereby dismissed.” Judge Kaplan then went on to say that, “based upon the decision that I’ve made, since necessarily I’ve treated this as a Franks decision, in order for the State to be able to take an appeal I will also dismiss the charges as they relate to Bryan Patterson under the warrant.” Presumably, since the dismissal of the conspiracy counts was the only issue before him, Judge Kaplan, by that statement, expressed an intention to dismiss not only the conspiracy counts in the information of July 27, 1988, but also the conspiracy counts contained in the original information accompanying the arrest warrant.

It appears that Judge Kaplan’s decision to dismiss the conspiracy counts against the defendant has two bases. One is that the affidavit supporting the arrest warrant on which the defendant was arrested included a recklessly made false statement on a key element of the crime of conspiracy to commit murder that required dismissal pursuant to Franks v. Delaware, supra. The second is that there was insufficient evidence of “intent to establish a conspiracy to commit murder” to justify a finding of probable cause and a continuation of the prosecution against the defendant. We disagree with the trial court as to both of these grounds.

A Franks violation in an affidavit supporting an arrest warrant does not entitle a defendant to the dismissal of the charges for which he was arrested. Such a violation may require the suppression of evidence or statements obtained as a result of the execution of the warrant but it does not deprive the court of jurisdiction nor does it bar a subsequent prosecution or void a resulting conviction. United States v. Crews, 445 U.S. 463, 474, 100 S. Ct. 1244, 63 L. Ed. 2d 537 (1980); Gerstein v. Pugh, 420 U.S. 103, 119, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975); United States v. Blue, 384 U.S. 251, 255, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 96 L. Ed. 541, reh. denied, 343 U.S. 937, 72 S. Ct. 768, 96 L. Ed. 1344 (1952); Ker v. Illinois, 119 U.S. 436, 440, 7 S. Ct. 225, 30 L. Ed. 421 (1886); United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986); United States v. Darby, 744 F.2d 1508, 1530-31, reh. denied, 749 F.2d 733 (11th Cir. 1984), cert, denied sub nom. Yamanis v. United States, 471 U.S. 1100, 105 S. Ct. 2322, 85 L. Ed. 2d 841 (1985); United States v. Stuart, 689 F.2d 759, 762 (8th Cir. 1982), cert. denied, 460 U.S. 1037, 103 S. Ct. 1427, 75 L. Ed. 2d 788 (1983); State v. Mitchell, 200 Conn. 323, 332, 512 A.2d 140 (1986); State v. Flemming, 198 Conn. 255, 259, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986); Lackey v. State, 246 Ga. 331, 333-34, 271 S.E.2d 478 (1980); Felders v. State, 516 N.E.2d 1, 2 (Ind. 1987); Nickell v. State, 746 P.2d 1155, 1157 (Okla. Crim. App. 1987); Pasco v. Titus, 26 Wash. App. 412, 416, 613 P.2d 181, rev. denied, 94 Wash. 2d 1005 (1980). Therefore, insofar as the alleged Franks violation was relied upon by the trial court for its determination to dismiss the conspiracy counts against the defendant, the decision is in error.

We also do not agree that there was insufficient cause or evidence to justify the continuation of the prosecution of the conspiracy counts against the defendant. On appeal, we will examine the evidence to determine whether it is sufficient to establish probable cause. State v. Mitchell, supra, 335. When reviewing “a motion to dismiss an information, the proffered proof is to be viewed most favorably to the state.” State v. Morrill, 193 Conn. 602, 611, 478 A.2d 994 (1984).

The record reveals that when the trial court granted the defendant’s motion to dismiss, it had, as a result of the initial § 54-46a hearing, the following evidence before it. On the night of Saturday, July 11,1987, the defendant and Richard Bazzano drove to a gathering of young people talking and drinking beer at a cul-de-sac in a new housing development on King Fisher Lane in Suffield. While there, they encountered the defendant’s brother, Andrew Patterson, and Eric Steiger. Shortly after arriving, the defendant left momentarily to give a friend a ride.

While the defendant was gone, a pickup truck arrived at the gathering and two men carrying pipes alighted and told the youths to leave the area. When everyone started to leave, Steiger approached the two men and explained that he had no weapon and that he did not want trouble, but that he wanted to know why they were hassling the group. The men responded by telling Steiger that they could take his head off with one swing. During the exchange, one of the men poked Steiger in the face with a pipe. At that, Steiger became very agitated and said, “if you think you’re big with a pipe, I’ll get a gun and come back.” Steiger mumbled that he was coming back to kill his assailants as he, Andrew Patterson, and Bazzano prepared to leave the area in his car.

When the defendant returned to King Fisher Lane, everyone was in the process of leaving, so he pulled his car up next to Steiger’s to inquire as to what was going on. Steiger, Bazzano and Andrew Patterson, who were seated in Steiger’s car, told the defendant not to go any further because of the presence of the men they had encountered. It was at this point that the defendant learned of the confrontation between Steiger and the two men, and that Steiger had been struck with a pipe. The defendant then turned his car around and followed Steiger’s car back to Steiger’s house.

When the four youths arrived there, Steiger was very upset. He told the defendant that they (Bazzano, Steiger and Andrew) were going to go back to King Fisher Lane to the residence of the two men. Steiger then went upstairs into the garage attic of his home with Andrew Patterson, Bazzano and the defendant. From the top of the attic stairs, the defendant observed Steiger commence to dress in camouflage military garb and Bazzano and Andrew Patterson begin to load ammunition into various weapons, including an M-l carbine and a nine millimeter pistol.

Steiger told the defendant to go downstairs and distract his mother because he did not want to kill her. Steiger told the defendant that if anyone got in his way, including his mother, Bazzano or Andrew Patterson, he would kill them. After talking to Steiger’s mother, the defendant returned to the attic for a short period of time and observed the others still loading ammunition into magazines. The loading of magazines went on for approximately half an hour while the defendant again went downstairs to distract Steiger’s mother. While Steiger, Andrew Patterson and Bazzano were in the attic, they loaded approximately 1000 rounds of ammunition into various weapons and magazines.

After Steiger, Andrew Patterson and Bazzano had completed their preparations in the attic, the defendant met them outside Steiger’s house. At that time Steiger was fully clothed in military gear including camouflage military pants, military boots, a camouflage t-shirt, a military field jacket and an ammunition belt. The web ammunition belt that was looped over Steiger’s shoulder contained a number of loaded ammunition pouches and Steiger had on his person a loaded M-l carbine, a nine millimeter pistol and a ten inch Gerber knife that was strapped to his chest.

After meeting the others outside, the defendant left temporarily at Steiger’s request to secure a police scanner. When he returned, he and Bazzano lifted Steiger into the back of Steiger’s hatchback automobile. Following Steiger’s instructions, the defendant lowered the hatch but did not lock it. Then the defendant, driving his own vehicle, followed Steiger’s automobile back to King Fisher Lane. At that point, Andrew Patterson was driving Steiger’s vehicle, Bazzano was in the passenger seat and Steiger was in the rear hatchback area.

At King Fisher Lane, the defendant stationed his car next to Steiger’s. At that time Steiger told the defendant to pull into the driveway of the victims’ house to see whether his assailants’ pickup truck was parked there. When the defendant did as he was told, two men came out of the house, ran towards the defendant’s car and struck it with metal pipes. The defendant then backed out of the driveway and drove away leaving behind the other car with Steiger, Bazzano and his brother. As the defendant drove away, he observed Steiger jump out of the hatchback of his car and run toward the two men in the driveway. He heard one gunshot.

After Steiger leapt from the car, Bazzano and Andrew Patterson also drove away and the defendant met and followed them in his car to the Patterson house. Andrew Patterson and Bazzano then drove to Vermont while the defendant stayed in the Suffield area. When the defendant returned home in the early hours of the following morning, Steiger came from behind the garage and told the defendant that he had killed the two men by firing approximately twenty rounds at them. At that time, Steiger handed the defendant his web ammunition belt and told him to throw it into the Connecticut River. The defendant, however, threw the belt into a field behind his house and went to bed. He later retrieved the belt for the police.

“The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial.... State v. Green, 237 Kan. 146, 148, 697 P.2d 1305 (1985); Myers v. Commonwealth, 363 Mass. 843, 850, 298 N.E.2d 819 (1973); State v. Dunn, 121 Wis. 2d 389, 396, 359 N.W.2d 151 (1984). In making its finding, the court had to ‘determine whether the government’s evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime.’ Arenella, ‘Reforming the Federal Grand Jury and the State Preliminary Hearing to Prevent Conviction Without Adjudication,’ 78 Mich. L. Rev. 463, 478 (1980); Brinegar v. United States, 338 U.S. 160,175-76, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).” State v. Mitchell, supra, 336. “ ‘The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear that “[t]here is often a fine line between mere suspicion and probable cause, and ‘[t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances.’ Brinegar v. United States, supra, 176.” State v. Penland, 174 Conn. 153, 155-56, 384 A.2d 356, cert. denied, 436 U.S. 906, 98 S. Ct. 2237, 56 L. Ed. 2d 404 (1978).’ ” State v. Dennis, 189 Conn. 429, 431-32, 456 A.2d 333 (1983); State v. Acquin, 187 Conn. 647, 657, 448 A.2d 163 (1982), cert. denied, 463 U.S. 1229, 103 S. Ct. 3570, 77 L. Ed. 2d 1411 (1983).

The conspiracy statute requires the defendant to act with the same intent as that of the perpetrator of the underlying crime. General Statutes § 53a-48; State v. Beccia, supra, 3-4. In this case, therefore, the defendant must have acted with the specific intent to cause the death of the victims. General Statutes § 53a-54a; State v. Chace, 199 Conn. 102, 104, 505 A.2d 712 (1986). “Generally, intent can be proved only by circumstantial evidence. State v. Harrison, 178 Conn. 689, 695, 425 A.2d 111 (1979); State v. Bzdyra, 165 Conn. 400, 403, 334 A.2d 917 (1973). ‘ “Intent may be, and usually is, inferred from conduct. State v. Cofone, 164 Conn. 162, 164, 319 A.2d 381 [1972]; State v. Smith, 157 Conn. 351, 354, 254 A.2d 447 [1969]. Intention is a mental process, and of necessity it must be proved by the statements or actions of the person whose act is being scrutinized. State v. Cofone, supra, 164; State v. Mazzadra, 141 Conn. 731, 735, 109 A.2d 873 [1954]. A person’s intention is to be inferred from his conduct. Kiernan v. Borst, 144 Conn. 1, 6, 126 A.2d 569 [1956].” State v. Bzdyra, [supra].’ State v. Sober, 166 Conn. 81, 92-93, 347 A.2d 61 (1974).” State v. Morrill, supra, 609. “ ‘ “An intent to cause death may be inferred from circumstantial evidence such as the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death.” State v. Zdanis, 182 Conn. 388, 396, 438 A.2d 696 (1980), cert. denied, 450 U.S. 1003, 101 S. Ct. 1715, 68 L. Ed. 2d 207 (1981). . . .The use of inferences based on circumstantial evidence is necessary because direct evidence of the accused’s state of mind is rarely available. State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980).’ State v. Martin, 195 Conn. 166, 170, 487 A.2d 177 (1985).” State v. Chace, supra, 105.

“Further, ‘ “[conspiracy can seldom be proved by direct evidence. It may be inferred from the activities of the accused persons. State v. Faillace, 134 Conn. 181, 185, 56 A.2d 167 (1947). It is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. The combination . . . may be proved by circumstantial evidence, that is, by proof of the separate acts of the individuals accused and by proof of circumstances from which the illegal confederation may be inferred. State v. Gerich, 138 Conn. 292, 297, 83 A.2d 488 [1951 ].” State v. Holmes, 160 Conn. 140, 150, 274 A.2d 153 (1970).’ State v. Baker, 195 Conn. 598, 604, 489 A.2d 1041 (1985).” State v. Brown, 199 Conn. 14, 22, 505 A.2d 690 (1986).

After a review of the record, we conclude that the evidence presented at the preliminary hearing was sufficient to establish probable cause to find a conspiracy to commit murder in this case. We note, first, that the state need not show, as the trial court seemed to believe, that the defendant was present when Eric Steiger said that he intended to kill the two men, for the court to draw a reasonable inference that the defendant knew what was happening and agreed to its accomplishment. The probable cause determination requires a common sense view of the facts. When the defendant returned to King Fisher Lane, he learned of the confrontation between Steiger and the two men. He knew that Steiger had been hit in the face with a pipe and that he wanted to get even. The defendant thereupon returned to Steiger’s house with Steiger, Andrew Patterson and Bazzano. While at Steiger’s house, the defendant watched as the others loaded ammunition into an M-l carbine, a nine millimeter pistol and an ammunition belt. The defendant was also made aware that Steiger would kill anyone who got in his way, including his own mother.

Further, when the defendant met Steiger outside Steiger’s house, Steiger was dressed in a full military camouflage outfit, carried a loaded M-l carbine, a loaded nine millimeter pistol, a large knife and voluminous amounts of ammunition. After observing this spectacle, the defendant did not hesitate to provide Steiger with a police scanner to enable Steiger to avoid police detection during his expedition. He also assisted Steiger into the back of the hatchback car and, at Steiger’s direction, left the hatchback unlocked to allow Steiger to exit quickly with his weapons. He then followed Steiger’s car back to King Fisher Lane and pulled his automobile into the driveway in order to locate the truck that the two men, who he knew were the targets of Steiger’s wrath, had previously driven to the end of the cul-de-sac earlier in the evening.

The recited facts would warrant a person of reasonable caution to believe that the defendant knew that Steiger intended to kill the two men and that the defendant, by assisting him, possessed the requisite intent to make him a coconspirator. We, therefore, conclude that the trial court abused its discretion and erred when it determined that there was not sufficient evidence or cause to justify the continuation of the prosecution of the conspiracy charges against the defendant. State v. Mitchell, 204 Conn. 187, 205-206, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987); see State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986). The trial court’s action in dismissing those charges is therefore reversed and the charges against the defendant should be allowed to proceed to trial without the necessity of a further hearing under § 54-46a.

There is error, the judgment is set aside and the case is remanded to the trial court with direction to reinstate the information containing the conspiracy counts against the defendant.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 54-96. appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.”

       We also raised, sua sponte, the issue of whether the trial court’s dismissal of the conspiracy charges against the defendant was an appealable final judgment. Both parties contend that it is and we agree. The defendant’s motion to dismiss was granted after the trial court had found no probable cause at a hearing under General Statutes § 54-46a. The trial court had also observed that the state had been given other opportunities to disclose evidence to establish probable cause but had failed to do so and that it was apparent to the trial court that the state had no further evidence. The trial court, therefore, dismissed the charges under General Statutes § 54-56, apparently to protect the defendant from the unchecked power of the prosecuting attorney; see State v. Carroll, 13 Conn. Sup. 112, 113 (1944); and the repeated initiation and termination of charges that left him in “legal limbo.” See State v. Lloyd, 185 Conn. 199, 207, 440 A.2d 867 (1981). Under such circumstances a dismissal terminates the prosecution and is an appealable final judgment. State v. Ross, 189 Conn. 42, 49, 454 A.2d 266 (1983).

       “[General Statutes] Sec. 53a-54a. murder defined, affirmative DEFENSES. EVIDENCE OF MENTAL CONDITION. CLASSIFICATION, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception; except that in any prosecution under this subsection, it shall be an affirmative defense that the defendant committed the proscribed act or acts under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be, provided nothing contained in this subsection shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.”
      “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       “[General Statutes] Sec. 53a-54b. capital felony. A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction.”

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       “[General Statutes (Rev. to 1987)] Sec. 54-46a. probable cause hearing FOR PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE IMPRISONMENT, (a) No person charged by the state, on or after May 26, 1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.
      “(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in superior court. The court shall be confined to the rules of evidence, except that written reports of expert witnesses shall be admissible in evidence and matters involving chain of custody shall be exempt from such rules. No motion to suppress or for discovery shall be allowed in connection with such hearing. The accused person shall have the right to counsel and may attend and, either individually or by counsel, participate in such hearing, present argument to the court, cross-examine witnesses against him and obtain a transcript of the proceedings at his own expense. At the close of the prosecution’s case, if the court finds that, based on the evidence presented by the prosecution, probable cause exists, the accused person may make a specific offer of proof, including the names of witnesses who would testify or produce the evidence offered. The court shall not allow the accused person to present such evidence unless the court determines that such evidence would be sufficient to rebut the finding of probable cause.
      “(c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person’s prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense.”

       The record reveals no reason why the state would submit the conspiracy counts for a probable cause determination under General Statutes § 54-46a. Neither party has maintained that those charges subjected the defendant to a possible penalty of death or life imprisonment. The defendant in his brief, moreover, has treated the information as containing simply two counts of conspiracy to commit murder, a class B felony. See General Statutes § 53a-51. We will do likewise. That being the case, the conspiracy charges were not required to be submitted for a probable cause determination under the statute. See General Statutes § 54-46a (c). The accessory statute, on the other hand, treats an accessory the same as a principal offender. See General Statutes § 53a-8. An accessory to murder, therefore, is subject to the possibility of a penalty of life imprisonment. The accessory counts against the defendant were, therefore, required to be submitted to a hearing under § 54-46a for a probable cause determination.

       “[General Statutes] Sec. 54-56. DISMISSAL OF INFORMATION BY COURT. All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”

       The only explanation we can fathom for this ruling is that, having cited the Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) decision as a ground for dismissal, the court attempted to void ab initio the prosecution of the conspiracy charges against the defendant because of their connection with the allegedly defective warrant affidavit. This case had several, and we trust, unique procedural aspects.

       A Franks violation also requires that the allegedly false material statement in an affidavit be made recklessly by the affiant. Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). In this instance there was no finding that it was the affiants who were reckless in alleging the facts relied upon for probable cause in the affidavit. In fact, neither of the affiants who signed the arrest warrant affidavit testified at the hearings before either Judge Kaplan or Judge Kline.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Daniel V. Presnick

      Daniel V. Presnick, in support of the petition.
    October 25, 1989
   The respondent Daniel V. Presnick’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 340, is denied.


text:
    Glenn M. Gold v. University of Bridgeport School of Law et al.

      Max F. Brunswick, in support of the petition.

      Richard L. Albrecht, in opposition.
    Decided October 25, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 379, is denied.


text:
    State of Connecticut v. Thomas Darby

      John R. Williams, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided October 25, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 445, is denied.


text:
    Larry E. Chace v. George D. Bronson, Warden

      John R. Williams, in support of the petition.

      Susan C. Marks, assistant state’s attorney, in opposition.
    Decided October 25, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 674, is denied.


text:
    State of Connecticut v. Gregory Wynter

      Kent Drager, assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided October 25, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 654, is denied.


text:
    William T. Evans v. George Bronson, Warden

      William T. Evans, pro se, in support of the petition.
    Decided October 25, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 571, is denied.


text:
    Benjamin I. Tedesco v. City of Stamford et al.

      Christopher R. Bello, in support of the petition.

      James V. Minor, assistant corporation counsel, in opposition.
    Decided October 25, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 51, is granted, limited to the following issue:

“Did the Appellate Court err in setting aside the judgment for the plaintiff and in directing judgment for the defendants because the complaint failed to allege that the violation of his constitutional right relied upon was attributable to the operation of a municipal government policy, ordinance, regulation or officially adopted and promulgated decision?”


text:
    Diana M. Klug v. Inland Wetlands Commission of the City of Torrington et al.

      George B. Simoncelli, Jr., corporation counsel, in support of the petition.

      John R. Logan, in opposition.
    Decided October 25, 1989
   The named defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 713, is denied.


text:
    State of Connecticut v. Rodney Rollins

      Frederick W. Fawcett, assistant state’s attorney, in support of the petition.

      Suzanne Zitser, assistant public defender, in opposition.
    Decided October 25, 1989
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 27, is denied.


text:
    State of Connecticut v. Ruben Reyes

      Suzanne Zitser, assistant public defender, in support of the petition.

      Mitchell Brody, assistant state’s attorney, in opposition.
    Decided October 25, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 695, is denied.


text:
    State of Connecticut v. Malcolm Carpenter

      William H. Narwold, in support of the petition.

      RitaM. Shair, deputy assistant state’s attorney, in opposition.
    Decided November 1, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 48, is denied.


text:
    Richard Salz v. Warden, Whalley Avenue Community Correctional Center

      Neal Cone, in support of the petition.

      Henri Alexandre, assistant attorney general, in opposition.
    Decided November 9, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court is denied.


text:
    State of Connecticut v. John H. Gagnon

      John H. Gagnon, pro se, in support of the petition.

      Paul J. Ferencek, deputy assistant state’s attorney, and Mary Elizabeth Baran, assistant state’s attorney, in opposition.
    Decided November 9, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 18 Conn. App. 694, is denied.


text:
    State of Connecticut v. Michael J. Marsala

      G. Douglas Nash, chief of legal services, and Richard Emanuel, assistant public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided November 9, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 478, is granted, limited to the following issue:

“Does a good faith exception to the exclusionary rule exist under Connecticut law; and if so, did the Appellate Court err in concluding that the good faith exception was applicable in this case?”


text:
    James J. Sotire, Sr. v. City of Stamford et al.

      William F. Gallagher, in support of the petition.

      Kathleen M. Byrne, in opposition.
    Decided November 9, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 505, is denied.


text:
    State of Connecticut v. Ralph Smith

      Louis S. Avitabile, in support of the petition.

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided November 9, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 646, is denied.


text:
    State of Connecticut v. Luis Maldonado

      PaulF. Thomas and David P. Friedman, special public defenders, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided November 9, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 137, is denied.


text:
    Henry Friedlander v. Claire Friedlander

      Henry Friedlander, pro se, in support of the petition.

      Saul Kwartin, in opposition.
    Decided November 9, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 803, is denied.


text:
    Hoffman Auto Leasing v. Mark Silk, P.C.

      Mark R. Silk, pro se, in support of the petition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court is denied.


text:
    Nicholas Venetucci v. Phyllis Salvino

      Daniel Shepro, in support of the petition.

      Louis Volpintesta, Jr., in opposition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court is granted, limited to the following issue:

“Is the controversy between the defendant and her former employer concerning the interpretation and enforcement of a covenant not to compete a ‘labor dispute’ as defined by Connecticut General Statutes § 31-112 (e)?”


text:
    State of Connecticut v. Reginald Horne

      G. Douglas Nash, public defender, in support of the petition.

      Richard F. Jacobson, assistant state’s attorney, in opposition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. Ill, is granted, limited to the following issue:

“Did the Appellate Court err in concluding that the trial of the defendant on four separate informations arising out of four incidents did not result in any substantial prejudice to the defendant because of the trial court’s instructions that the jury should consider each case separately?”


text:
    State of Connecticut v. Richard Lombardo

      Robert M. Casale, in support of the petition.

      James M. Ralls, deputy assistant state’s attorney, in opposition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 631, is denied.


text:
    Frank X. Lo Sacco v. Debra M. Young et al.

      Frank X. Lo Sacco, pro se, in support of the petition.
    Decided November 29, 1989
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 6, is denied.


text:
    State of Connecticut v. Simon Ostolaza

      James J. Nixon and Penny Q. Seaman, in support of the petition.

      Timothy Sugrue, deputy assistant state’s attorney, in opposition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 40, is denied.


text:
    Alice M. Kalandyk v. John M. Kalandyk

      JohnM. Kalandyk, pro se, in support of the petition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 801, is denied.


text:
    State of Connecticut v. Joseph Torrice

      Kent Drager, assistant public defender, and G. Douglas Nash, public defender, in support of the petition.

      John O'Meara, deputy assistant state’s attorney, in opposition.
    Decided November 29, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 75, is denied.


text:
    Barclays Bank of New York v. William M. Ivler et al.

      William M. Ivler, pro se, in support of the petition.

      Richard E. Castiglioni, in opposition.
    Decided November 29, 1989
   The defendant William M. Ivler’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 163, is denied.


text:
    State of Connecticut v. George Velez

      Timothy J. Sugrue, deputy assistant state’s attorney, in support of the petition.

      Brian J. Kornbrath, in opposition.
    Decided November 29, 1989
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 168, is granted, limited to the following issue:

“Did the Appellate Court err in concluding that the police had an insufficient basis for relying upon the information furnished by the informant and, therefore, lacked probable cause for the arrest and subsequent search of the defendant?”


text:
    Hartford Federal Savings and Loan Association v. Stanley V. Tucker et al.

      Stanley V. Tucker, pro se, in support of the petitions.
    Decided November 29, 1989
   The defendant Stanley V. Tucker’s petitions for certification for appeal from the Appellate Court, 20 Conn. App. 804, are denied.


text:
    State of Connecticut v. Gary Blackwell

      G. Douglas Nash and Donald D. Dakers, public defenders, in support of the petition.

      Julia DiCocco Dewey, assistant state’s attorney, in opposition.
    Decided December 14, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 193, is denied.


text:
    Triangle Contractors, Inc. v. Debra M. Young et al.

      Frank X. Lo Sacco, pro se, in support of the petition.

      George M. Purtill, in opposition.
    Decided December 14, 1989
   The defendant Frank X. Lo Sacco’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 218, is denied.


text:
    State of Connecticut v. Charles D. Janice

      William M. Bloss, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided December 19, 1989
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 212, is denied.


text:
    State of Connecticut v. Eric N. Person

      Hubert J. Santos, in support of the petition.

      Harry Weller, assistant state’s attorney, in opposition.
    Decided January 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 115, is granted, limited to the following issues:

“1. May the state, in a criminal prosecution, require a defense witness to invoke the privilege against self-incrimination in open court, and may it use such invocation and subsequent waiver as a basis for impeaching the witness and for adverse comment in its summation?
“2. If the trial court’s ruling to permit such conduct was erroneous, was the Appellate Court correct in concluding that the error was harmless?”


text:
    Southport Manor Convalescent Center, Inc., et al. v. Brian Foley
   The plaintiffs Southport Manor Convalescent Center, Inc., and Albert A. Garofalo’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 223, is granted, limited to the following issues:

Dwight F. Fanton, James T. Shearin and Dion W. Moore, in support of the petition.

James G. Green, Jr., in opposition.

Decided January 2, 1990

“1. Did the Appellate Court err in concluding that a prior dismissal of a suit raising the same claims as those asserted in the present action had resulted in a judgment having ‘the same effect as if the case had been tried on the merits’ (20 Conn. App. 223, 228) for the purpose of invoking the defense of res judicata, when the dismissal of the prior suit was based upon a motion to dismiss for improper venue and the pen-dency of a prior action, to the granting of which the plaintiff was deemed to have consented because of its failure to file a memorandum opposing the motion within the time allowed by Practice Book § 143?
“2. Did the Appellate Court err in affirming a judgment of dismissal based upon the defense of res judicata when Practice Book § 164 expressly includes such a defense among those to be specially pleaded?”


text:
    State of Connecticut v. Ruben Reyes

      Richard Emanuel, assistant public defender, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided January 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 19 Conn. App. 179, is denied.


text:
    Anne Todd v. Edward A. Jazlowiecki

      Stephen R. Corbiel, in support of the petition.
    Decided January 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 805, is denied.


text:
    Jerome H. Diamond v. Augustus J. Simmons et al.

      Otto P. Witt, in support of the petition.

      Richard B. Laschever, in opposition.
    Decided January 2, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 807, is denied.


text:
    State of Connecticut v. Earl Anderson

      Martin Zeldis, assistant public defender, in support of the petition.

      Jacqueline J. Footman, deputy assistant state’s attorney, in opposition.
    Decided January 11, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 271, is denied.


text:
    Linda C. Waterman v. United Caribbean, Inc., et al.
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 283, is granted, limited to the following issue:

“Did the Appellate Court err in concluding that a trial court may properly render judgment beyond the 120 day period allowed by Connecticut General Statutes § 51-183b without the waiver or consent of all parties prior to rendition of the judgment?”

Haden P. Gerrish, in support of the petition.

Paul L. Bollo, in opposition.

Decided January 11, 1990


text:
    In re Christopher G.

      Robert M. Cósale, in support of the petition.

      Carolyn K. Longstreth, assistant state’s attorney, in opposition.
    Decided January 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 101, is denied.


text:
    State of Connecticut v. Robert W. Pettersen

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

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, in opposition.
    Decided January 18, 1990
   The defendant’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 288, is denied.


text:
    Eugene E. Krohner v. Seyburt Associates Limited Partnership

      Martin A. Gould, in support of the petition.
    Decided January 18, 1990
   The plaintiff’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 298, is denied.


text:
    State of Connecticut v. Michael Janson

      Geoffrey Marion, deputy assistant state’s attorney, in support of the petition.
    Decided January 18, 1990
   The state of Connecticut’s petition for certification for appeal from the Appellate Court, 20 Conn. App. 348, is denied.


author: Glass, J.

text:
    Steven G. M. Biro et al. v. Thomas W. Hill, Jr., et al.
    (13734)
    Peters, C. J., Healey, Callahan, Glass and Hull, Js.
    Argued December 14, 1989
    decision released February 20, 1990

      Kenneth D. Wallace, for the appellants (plaintiffs).

      Robert G. Oliver, with whom, on brief, was Carolyn P. Gould, for the appellees (defendant Sidley and Austin et al.).
   Glass, J.

This appeal principally concerns the question of who constitutes a “necessary party” under Practice Book § 152 (3). Specifically, the plaintiffs, Steven G. M. Biro and his wife Safiye Guzin Altiok, appeal from a final judgment of the Superior Court, rendered March 27, 1989, striking the five counts of their amended complaint and dismissing their action due to their failure to join a “necessary party” pursuant to Practice Book § 152 (3). We find error.

“Where an appeal is taken from a judgment following the granting of a motion to strike, we take the facts to be those alleged in the amended complaint construed in a manner most favorable to the pleader.” Amodio v. Cunningham, 182 Conn. 80, 82, 438 A.2d 6 (1980). The amended complaint in this case reveals the following facts. Biro is a citizen of the state of Connecticut and is a practicing attorney who was duly admitted in Connecticut in 1974. Effective in August, 1979, Biro entered into a written partnership agreement with Thomas W. Hill, Jr., of the law firm of Hill and Spoliansky, which had offices located at Muscat, Oman; Dubai, United Arab Emirates; and New York, New York (hereinafter Oman partnership). The partnership agreement indicates that the Oman partnership wished to induce Biro to move to Oman to practice law as a partner in the firm. The agreement was not terminable by the partnership except on one year’s notice, provided, however, that no such notice could be given unless Biro had been a partner for at least two years. The agreement included provisions for a guaranteed minimum yearly payment plus 20 percent of profits, a $10,000 annual credit and accrual of equity in the partnership. Liberal fringe benefits such as insurance, automobiles, a staffed villa for residence, travel and vacation were also set forth. In addition, effective August, 1979, Altiok, a computer expert, entered into a separate and distinct agreement with the Oman partnership to engage in the importation, distribution and service of computers in Oman and the United Arab Emirates.

The plaintiffs moved to Oman in October, 1979. At that time, Biro became the partner in charge of the Oman office, and was held out to clients, prospective clients and the world as such. By early 1981, however, the plaintiffs allege that Sidley and Austin, a large law firm with offices worldwide, began surreptitious negotiations with Hill. Specifically, the plaintiffs assert that Sidley and Austin induced Hill to enter into a secret agreement by which Hill became a partner in Sidley and Austin. In return, Sidley and Austin acquired and took over the law practice and assets of the Oman partnership, and Biro was excised from the partnership.

Biro alleges that Sidley and Austin and four of its partners (hereinafter Sidley and Austin) “successfully induced the breach of the Partnership Agreement and wantonly and recklessly disregarded that agreement and the fiduciary obligation owed to [him].” In particular, Biro brings three counts against Sidley and Austin: (1) inducing breach of contract; (2) conversion and misappropriation of property; and (3) interference with economic expectations. Additionally, Altiok brings two counts against Sidley and Austin: (1) inducing breach of contract; and (2) misappropriation of property. The plaintiffs allege Sidley and Austin to be solely liable for each of the two claims of inducing breaches of the contracts, and to be jointly and severally liable for the other three claims.

Personal service of process pursuant to General Statutes § 52-57 (b) was made upon the partnership of Sidley and Austin and four of its partners, including Mark A. Angelson, a partner who resides in Greenwich. In addition, Hill was also named as a defendant, and both plaintiffs alleged a breach of contract count against him. Moreover, the plaintiffs included Hill as a joint tortfeaser with Sidley and Austin in three of the counts. Consequently, service was made upon Hill at the Chicago headquarters of Sidley and Austin. Thereafter, however, the plaintiffs’ counsel was advised that Hill was no longer a partner in Sidley and Austin and had become a resident of the state of Florida. As a result, personal service on Hill was not possible, and the two breach of contract counts that applied solely to him were dropped by the plaintiffs.

Sidley and Austin then filed a motion under Practice Book § 152 (3) to strike all five remaining counts in the plaintiffs’ amended complaint. In particular, Sidley and Austin contended that Hill was a “necessary party” within the meaning of § 152 (3). The trial court agreed that Hill was a necessary party, but instead of striking the amended complaint, stayed further proceedings for ninety days, during which time the plaintiffs were given the opportunity to file an action in the New York state courts and to attempt to obtain long-arm service over Hill in Florida. The trial court stated: “If it develops that . . . Hill cannot be made a party in New York, the stay will be lifted in Connecticut and the matter may then proceed in this court. If . . . Hill is in fact made a party to the New York action, or, alternatively, plaintiffs do not start an action in New York, then the motion to strike will be granted.” The plaintiffs, however, chose to forego bringing a New York action and requested that a final judgment be rendered in order that this appeal might be taken.

On appeal, the plaintiffs argue that the trial court erred in ruling that Hill was a “necessary party” for the purposes of § 152 (3). We agree. In Sturman v. Socha, 191 Conn. 1, 6-7, 463 A.2d 527 (1983), we defined “necessary parties” as “ ‘[pjersons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. . . . [Bjut if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.’ Shields v. Barrow, [58 U.S. (17 How.) 130, 139, 15 L. Ed. 158 (1854)]. . . .’’In short, a party is “necessary” if its presence is “absolutely required in order to assure a fair and equitable trial.” Id., 7.

In the instant case, because the trial court can “proceed to a decree, and do complete and final justice” without Hill’s being joined in the suit, we hold that Hill is not a “necessary party.” First, in the two counts of inducing breach of contract, the allegation of liability is solely against Sidley and Austin, and, therefore, Hill could not have been joined even if he resided in Connecticut. Second, prior to the enactment of the Connecticut Tort Reform Act, No. 86-338 of the 1986 Public Acts, this court stated: “Where two or more persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or in doing it under circumstances which fairly charge them with intending the consequences which follow, they incur a joint and several liability for the acts of each and all of the joint participants. . . . There is no apportionment of responsibility, and no right of contribution or indemnity between them. . . . One may be sued severally, or any or all together.” Sparrow v. Bromage, 83 Conn. 27, 28-29, 74 A. 1070 (1910); see Lamb v. Peck, 183 Conn. 470, 472, 441 A.2d 14 (1981); Gutowski v. New Britain, 165 Conn. 50, 54, 327 A.2d 552 (1973). Thus, one defendant, under the doctrine of joint and several liability, could be held fully responsible for all damages.

In the present case, Sidley and Austin is alleged to be jointly and severally liable on the three remaining tort counts. Therefore, since the alleged harm occurred before the operative date of No. 86-338 of the 1986 Pub-lie Acts, the fact that Hill may also be liable on these three tort counts does not mean that Hill is a “necessary party.” “When joinder is permitted . . . each tortfeaser may be sued severally, and held responsible for the damage caused, although other wrongdoers have contributed to it. The defendant cannot compel the plaintiff to make the others parties to the action, or complain because they have not been joined. . . .” W. Prosser & W. Keeton, The Law of Torts (5th Ed. 1984) p. 327; see, e.g., Shredded Wheat Co. v. Kellogg Co., 26 F.2d 284, 286-87 (D. Conn. 1928); Sox v. Hertz Corporation, 262 F. Sup. 531, 532 (D.S.C. 1967); Tower v. Camp, 103 Conn. 41, 46-47, 130 A. 86 (1925); Melichar v. Frank, 78 S.D. 58, 62, 98 N.W.2d 345 (1959); Farmers’ State Bank v. Jeske, 50 N.D. 813, 818, 197 N.W. 854 (1924). In sum, the plaintiffs can obtain full relief on the three tort counts without joining Hill, and, therefore, Hill’s presence is not necessary for the court to “proceed to a decree, and do complete and final justice.” Sturman v. Socha, supra, 7.

There is error, the judgment dismissing the case is set aside and the case is remanded to the trial court for further proceedings not inconsistent with this opinion.

In this opinion the other justices concurred.

       Practice Book § 152 (3) reads as follows: “Whenever any party wishes to contest ... (3) the legal sufficiency of any such complaint, counterclaim or cross complaint, or any count thereof, because of the absence of any necessary party . . . that party may do so by filing a motion to strike the contested pleading or part thereof.”

       The four named partners are Mark A. Angelson, H. Blair White, Maurice J. Miller and William O. Fifield.

       As the basis for his claim of conversion and misappropriation of property, Biro contends that his property in the Oman partnership, as well as other property loaned to the partnership and used in its offices, and property maintained in his private residence in Oman, were converted by Sidley and Austin to its own use. In addition, as the basis for his claim of tortious interference with business expectations, Biro maintains that Sidley and Austin and Hill made threats against his safety, liberty and body, and those of his family. He claims that these actions were aimed at barring him from Oman and preventing him from practicing law there or in other Near East countries. As a result of the alleged acts, Biro claims that he was not only compelled to abandon his efforts to continue to practice law in the Near East, but forced to leave the area.

       Altiok alleges that Sidley and Austin induced the breach of her computer agreement, and converted property that belonged to her in Oman.

       The plaintiffs included Hill in all of their counts except those concerning inducing breach of contract.

       This appeal was originally filed in the Appellate Court, but pursuant to Practice Book § 4023, this court transferred the appeal to itself on July 6,1989.

       The Connecticut Tort Reform Act, No. 86-338 of the 1986 Public Acts, provides for, inter alia, the right of contribution.

       The plaintiffs allege that Sidley and Austin perpetrated its tortious behavior in 1981, and the effective date of No. 86-388 of the 1986 Public Acts was October 1, 1986.

       The plaintiffs also raise a constitutional issue regarding their right to redress for injury. Given our disposition of the question of whether Hill is a “necessary party,” we need not, however, examine this claim.
      Furthermore, Sidley and Austin argues that the trial court’s ruling may be affirmed on the alternate ground of forum non conveniens. As we stated in Union Carbide Corporation v. Aetna Casualty & Surety Co., 212 Conn. 311, 319, 562 A.2d 15 (1989), “the doctrine of forum non conveniens vests discretion in the trial court to decide ‘where trial will best serve the convenience of the parties and the ends of justice.’ ” Therefore, because the trial court has yet to rule on the question of forum non conveniens, it would be premature for this court to examine the issue at this juncture.


author: Covello, J.

text:
    Ernest Tyers v. Medi Coma et al.
    (13818)
    Healey, Shea, Callahan, Covello and Hull, Js.
    Argued December 8, 1989
    decision released February 20, 1990

      Jeffrey D. Ginzberg, for the appellant (plaintiff).

      Donald W. McGill, with whom, on the brief, was Rene G. Martineau, for the appellees (defendants).
   Covello, J.

This is an appeal from a judgment of the trial court, Hon. James T. Healey, state trial referee, refusing to set aside an allegedly fraudulent transfer of real property. The dispositive issues are: (1) whether the trial court failed to consider one of the two alternative tests required to establish a fraudulent conveyance; and (2) whether the trial court’s factual determinations are supported by the evidence. We find no error.

The trial court found the following: On July 31,1984, the Travelers Insurance Company paid the defendant Arzije Coma $115,000 in satisfaction of a workers’ compensation claim. This sum represented compensation for a permanent injury to Mrs. Coma’s right arm. Mrs. Coma thereafter deposited the entire amount of the compensation settlement into a passbook money market bank account that she owned jointly with her husband, the named defendant Medi Coma. Each defendant could withdraw the entire sum of money at any time.

Thereafter, Mr. Coma requested permission from Mrs. Coma to borrow funds from the settlement proceeds for his own business purposes. Mrs. Coma consented to the withdrawals, but only upon the express condition that all funds withdrawn be repaid. Mr. Coma agreed. Mrs. Coma never withdrew any of the funds herself, but consented to the withdrawals made by Mr. Coma.

On November 22, 1985, Mr. Coma purchased a restaurant business from the plaintiff. Mr. Coma gave the plaintiff an unsecured $50,000 promissory note as part of the purchase price. Both defendants intended the restaurant to be a gift for their twenty-one year old son. For a variety of reasons the business was not profitable.

On November 1, 1987, Mr. Coma defaulted on the payment of the promissory note held by the plaintiff. On April 24, 1988, he closed the doors of the restaurant. By that date, the contents of the joint money market bank account had been exhausted. Mrs. Coma thereupon demanded immediate repayment of all sums that Mr. Coma owed her.

On May 25, 1988, Mr. Coma executed a quitclaim deed transferring to Mrs. Coma his one-half interest in the marital premises, located in Wolcott. The stated consideration on the deed was $75,000. At the time of the conveyance, the fair market value of the property was approximately $250,000, and it was subject to mortgages approximating $150,000. Mr. Coma had no other assets at that time.

On June 20, 1988, nearly one month after the conveyance, the plaintiff began a collection action seeking the balance due on the note. Incident thereto, the plaintiff sought, by way of prejudgment remedy, to attach Mr. Coma’s interest in the marital premises. On January 23,1989, the plaintiff, having discovered the earlier conveyance, commenced a second action, this time against both defendants, seeking to set aside the transfer as a fraudulent conveyance. The two actions were thereafter consolidated for trial.

On June 26,1989, the trial court rendered judgment in the collection action in favor of the plaintiff, against Mr. Coma, in the amount of $45,695.70 together with interest of $7824.21. In the fraudulent conveyance action, however, the trial court rendered judgment in favor of the defendants. The plaintiff appealed from the judgment in the fraudulent conveyance action to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

On appeal, the plaintiff raises three claims of error: (1) the trial court erred in considering only one of the two alternative tests for establishing a fraudulent transfer; (2) the trial court erred by concluding that there was good consideration for the transfer of the property from Mr. Coma to Mrs. Coma; (3) the trial court erred in failing to conclude that Mrs. Coma made an inter vivos gift to Mr. Coma of the compensation settlement proceeds, rather than a loan.

The party seeking to set aside a conveyance as fraudulent bears the burden of proving either: (1) that the conveyance was made without substantial consideration and rendered the transferor unable to meet his obligations; or (2) that the conveyance was made with a fraudulent intent in which the grantee participated. Bizzoco v. Chinitz, 193 Conn. 304, 312, 476 A.2d 572 (1984); Zapolsky v. Sacks, 191 Conn. 194, 200, 464 A.2d 30 (1983). The party seeking to set aside the conveyance need not satisfy both alternatives. Bizzoco v. Chinitz, supra.

The plaintiff argues that the trial court failed to apply the second test, i.e., that Mr. Coma made the conveyance with a fraudulent intent in which Mrs. Coma participated. We do not agree.

Whether the conveyance in question was fraudulent is purely a question of fact. Zapolsky v. Sacks, supra. Fraudulent intent must be proved, if at all, by “ ‘ “clear, precise and unequivocal evidence.” ’ [Alaimo v. Royer, 188 Conn. 36, 39, 448 A.2d 207 (1982)].” J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983). This standard of proof applies to intra-familial conveyances. Where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980). As the factfinder, the trial court was entitled to accept the testimony of Mr. Coma that he did not intend to deprive the plaintiff of the money owed him when he transferred the real estate to Mrs. Coma. See Kaplan v. Kaplan, 186 Conn. 387, 391, 441 A.2d 629 (1982). The trial court was entitled, similarly, to accept the testimony of both defendants that a loan agreement existed between them that obligated Mr. Coma to repay the entire $115,000 amount owed to his wife. The trial court was further entitled to accept the testimony of both defendants that the transfer of Mr. Coma’s equity in the marital premises was in partial satisfaction of his obligation to his wife. “Since the trier of fact is the ultimate judge of the credibility of witnesses, we may not pass upon [their credibility]. Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975).” State v. DeForge, 194 Conn. 392, 398, 480 A.2d 547 (1984). We conclude that the trial court properly considered the applicable law, and that the plaintiff simply failed to meet his burden of proof, in the eyes of the trial court, as to the elements necessary to set aside the conveyance as fraudulent.

The plaintiff next argues that the trial court erred when it found that consideration existed to support the subsequent transfer of the marital premises. As the party attempting to prove the lack of consideration, the plaintiff bore the burden of proof. Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 342, 150 A.2d 597 (1959); see also Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 142, 558 A.2d 966 (1989).

The trial court found that the conveyance of Mr. Coma’s equity in the marital premises to Mrs. Coma was part of the contract between them to repay the $115,000 that he had borrowed from her compensation settlement, and was in fact a partial repayment of Mr. Coma’s original obligation. This contention, as claimed by both Mr. and Mrs. Coma in their testimony, presented a factual issue that was within the sole province of the trial court to decide. See, e.g., Zapolsky v. Sacks, supra, 201. We conclude that the trial court did not clearly err in making that finding.

The plaintiff’s final contention is that the trial court erred in not concluding that Mrs. Coma made an inter vivos gift of her $115,000 compensation settlement when she placed that amount in the money market bank account jointly owned with Mr. Coma. This, again, is a factual matter to be determined by the trial court. In this instance, the trial court chose to accept the testimony of both defendants that the agreement between them was a loan, and that Mrs. Coma expected Mr. Coma to repay all funds borrowed from the account. We find that the conclusion implicitly drawn by the trial court, i.e., that Mrs. Coma did not make an inter vivos gift, is supported by the testimony of the parties. See Bergen v. Bergen, 177 Conn. 53, 56-57, 411 A.2d 22 (1979); Clayman v. Prochaska, 2 Conn. App. 430, 435, 479 A.2d 1214 (1984).

Factual findings may not be rejected on appeal because the reviewing judges personally disagree with the conclusion of the trial court or would have found differently had they been sitting as factfinders. Kaplan v. Kaplan, supra, 391. This court may reject factual findings only if they are “clearly erroneous” in view of the entire record. Practice Book § 4061; Kaplan v. Kaplan, supra, 392. This is not the case here.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-552 provides that “[a]ll fraudulent conveyances, suits, judgments, executions or contracts, made or contrived with intent to avoid any debt or duty belonging to others, shall, notwithstanding any pretended consideration therefor, be void as against those persons only, their heirs, executors, administrators or assigns, to whom such debt or duty belongs.”

       “[Practice Book] See. 4061. (Formerly Sec. 3060D). review by the SUPREME COURT
      “The supreme court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the reponsibility of the appellant to provide an adequate record for review.”


author: Santaniello, J.

text:
    Richard J. Bonelli v. Sandra A. Bonelli
    (13716)
    Peters, C. J., Shea, Callahan, Glass and Santaniello, Js.
    Argued November 7, 1989
    decision released February 20, 1990

      C. Michael Budlong, with whom was Terence S. Ward, for the appellant (plaintiff).

      M. Jane Christensen, with whom was Ruth H. Mantak, for the appellee (defendant).
   Santaniello, J.

This is an appeal from the judgment of the Appellate Court setting aside the judgment of the trial court in a dissolution action on the ground that the “undisputed facts on the record [were] sufficient to require the disqualification of the judge . . . .” Bonelli v. Bonelli, 18 Conn. App. 207, 209, 557 A.2d 559 (1989). On May 25, 1989, we granted the plaintiff’s petition for certification to determine whether the Appellate Court had erred in its conclusion. We reverse.

The underlying procedural and factual background is as follows. A judgment was rendered in a dissolution action between the parties by the trial court, Kaplan, J., on January 30, 1987. Approximately two months later, the defendant moved to open the judgment and to disqualify Judge Kaplan, alleging that the defendant’s counsel had recently become aware that the plaintiff’s attorney and the judge had been co-counsel in a wrongful death action from January, 1984, until his appointment to the bench in November, 1985. The motion further alleged that a dispute over legal fees in the wrongful death action remained pending and that the judge’s successor law firm retained a financial interest in the outcome of that dispute.

The judge denied the defendant’s motion, acknowledging the facts contained therein, but finding that the allegations were legally insufficient to require disqualification. The defendant subsequently filed a motion for an evidentiary hearing, which was denied by the court, Bar all, J., on the ground that an evidentiary hearing is not required when there are no facts in dispute.

The defendant raised four issues on appeal. The Appellate Court ruled only on the motion for disqualification, holding that “[ajlthough no single fact in this case requires disqualification, we conclude from the totality of circumstances, and the facts as established on the record, that disqualification was required . . . . ” Bonelli v. Bonelli, supra, 211. We disagree.

The judge’s former law firm and the plaintiff’s attorney were cocounsel in a wrongful death action, Nesko v. Graves, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV-82-269220 (November 19,1986). The Nesko plaintiff retained the law firm of Lavitt, Hutchinson and Kaplan to represent her on June 10, 1982. While he was an attorney, Judge Kaplan’s involvement with the case was confined to an introductory meeting with the Nesko plaintiff, writing a letter discharging the attorneys who previously had served as counsel and making arrangements for disposition of fees upon the conclusion of the case. A member of Judge Kaplan’s former law firm entered an appearance in the case a few days later. The plaintiff’s attorney entered an appearance as cocounsel in the Nesko action on January 27,1984. The cocounsel relationship with the judge’s law firm existed until the judge went on the bench on November 6, 1985.

After his appointment to the bench, the judge’s successor law firm continued to represent the Nesko plaintiff. Eventually the Nesko case was resolved by a stipulated judgment rendered by the Superior Court on November 19,1986. A subsequent dispute over legal fees in the case resulted in a separate action in the Superior Court and the filing of an objection in the Probate Court to the distribution of funds derived from the stipulated judgment. Both of these matters were still pending at the time of the decision in the Bonelli dissolution action, but the judge was not involved in either matter. The only financial association he retained with the successor law firm was a stock redemption agreement, which was not affected in any way by the Nesko case.

A careful examination of the record reveals that the judge’s involvement in the Nesko matter while a practicing attorney was very limited after the initial interview and correspondence of June 10, 1982. He never personally entered an appearance or signed any of the pleadings or other documents in the case. The judge stated unequivocally and accurately that his participation in the Nesko case had been minimal. His name does not appear in the Nesko file except on two notices of depositions that were addressed to him personally. There is no evidence that the judge ever attended either of the depositions, and indeed the record as a whole indicates that he took no active role in the case after the initial interview. There is, for example, no indication of any correspondence or personal meetings between the judge and the plaintiff’s attorney concerning the Nesko file during the existence of the cocounsel relationship or after its termination.

The defendant does not claim, nor is there any other indication, that the judge had a financial relationship with the plaintiff’s attorney or that the judge retained a financial interest in the outcome of the wrongful death action. In addition to the absence of any financial relationship, the record indicates that there was no business, social or any other relationship between the judge and the plaintiff’s attorney other than the prior co-counsel association.

The undisputed facts thus disclose a formal cocounsel relationship between the judge and the plaintiff’s attorney in an unrelated action that ended fourteen months prior to any involvement of the judge in the instant case. The issue before the court is whether these facts required disqualification of the trial judge.

The Appellate Court determined that this case is governed by Canon 3 C (1) of the Code of Judicial Conduct, which provides: “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned . . . . ” The standard provided in Canon 3 C (1) was more fully developed by this court in Papa v. New Haven Federation of Teachers, 186 Conn. 725, 744-46, 444 A.2d 196 (1982): “The standard to be employed is an objective one .... ‘Any conduct that would lead a reasonable [person] knowing all the circumstances to the conclusion that the judge’s “impartiality might reasonably be questioned” is a basis for the judge’s disqualification. Thus, an impropriety or the appearance of impropriety . . . that would reasonably lead one to question the judge’s impartiality in a given proceeding clearly falls within the scope of the general standard . . . . ’ Thode, Reporter’s Notes to Code of Judicial Conduct (1973), pp. 60-61.” (Emphasis added.)

Canon 3 C was adopted by the Superior Court in 1974, and it reflects the purpose of avoiding even the appearance of impropriety in the realm of judicial conduct. We do not question that the prevention of the appearance of impropriety is of vital importance in preserving confidence in the judiciary and the judicial process. Cameron v. Cameron, 187 Conn. 163, 170, 444 A.2d 915 (1982); Dacey v. Connecticut Bar Assn., 184 Conn. 21, 29, 441 A.2d 49 (1981); Dubaldo v. Dubaldo, 14 Conn. App. 645, 650, 542 A.2d 750 (1988). But the application of the facts in this case to the standard set by Canon 3 C leads us to a different conclusion from that reached by the Appellate Court. In our judgment, a reasonable person knowing all the facts would conclude that the trial judge’s prior association with the plaintiff’s attorney did not jeopardize his impartiality.

The decision of the Appellate Court does not identify the specific factors that it considered in reaching its conclusion. In order to assess disqualification in the context of a prior cocounsel relationship, the important factors to be considered are the closeness of the cocounsel relationship, the possibility of any financial benefit to the judge resulting from the cocounsel association, the existence of any social or personal relationship between the trial judge and counsel, and the amount of time that has elapsed after termination of the cocounsel relationship. Examination of the “totality of the circumstances” in this case demonstrates that this prior cocounsel relationship was not a very close association. The trial judge’s personal involvement in the Nesko case prior to his appointment to the bench was limited to the initial interview and correspondence concerning the case. It is evident from the record that other members of the judge’s firm actually managed the Nesko file, and there is no evidence of any personal contact with the plaintiff’s attorney regarding the Nesko case. The cocounsel relationship was a nominal one at best, since Judge Kaplan’s former law firm and the plaintiff’s counsel were representing the interests of different clients.

There is nothing about the cocounsel relationship itself that would lead a reasonable person to question the judge’s impartiality. A review of federal and state case law indicates that much closer prebench contacts between judge and counsel have been rejected as grounds for disqualification under Canon 3 C. Disqualification is not necessarily required even when his former law partner appears before a trial judge; Alvarado Morales v. Digital Equipment Corporation, 699 F. Sup. 16, 18 (D. Puerto Rico 1988); Bumpus v. Uniroyal Tire Co. Division of Uniroyal, Inc., 385 F. Sup. 711, 714 (E.D. Pa. 1974); nor is it required when counsel is a former law clerk. Patzner v. Burkett, 779 F.2d 1363, 1372 (8th Cir. 1985); Smith v. Pepsico, Inc., 434 F. Sup. 524, 526 (S.D. Fla. 1977). A cocounsel relationship, in and of itself, is insufficient to require disqualification of a judge.

We acknowledge that a prior cocounsel relationship accompanied by an additional association, such as a close personal or social involvement, or an ongoing financial relationship, may cause a reasonable person to question a judge’s impartiality. See Potashnick v. Port City Construction Co., 609 F.2d 1101, 1114-15 (5th Cir.), cert. denied, 449 U.S. 820, 101 S. Ct. 78, 66 L. Ed. 2d 22 (1980) (holding that a judge with an extensive business and professional relationship with counsel should have disqualified himself). We also recognize that an extensive cocounsel association that involves significant contact between judge and counsel may implicate Canon 3 C (1). The record in this case, however, reveals no evidence that would cause a reasonable person to question the impartiality of the judge.

One of the considerations for a court in examining the prior cocounsel association of a judge is the amount of time that has expired since the termination of the cocounsel relationship. The federal courts have informally adopted a policy suggesting that judges should recuse themselves from cases involving former members of the judge’s firm or former law clerks for a period of one or two years after the prior association has ended. United States v. Hollister, 746 F.2d 420, 426 (8th Cir. 1984) (suggesting a one year recusal period before a judge’s former law clerk may appear as counsel before the judge); Smith v. Pepsico, Inc., supra (noting a one year recusal period in the Southern District of Florida and a two year period for the Eastern District of Pennsylvania in cases involving members of a judge’s former firm). The association of a former law clerk or member of a judge’s former firm is inherently a much closer relationship than that of cocounsel. In our view fourteen months is clearly a sufficient time period to attenuate any possible impropriety deriving from the cocounsel relationship in this case.

Any decision regarding disqualification of a judge for prior contact with an attorney must be made with the understanding that judges often come to the bench after having had extensive contacts with the community and the legal profession. See Margoles v. Johns, 660 F.2d 291, 301 (7th Cir. 1981), cert. denied, 455 U.S. 909, 102 S. Ct. 1256, 71 L. Ed. 2d 447 (1982); State v. Romano, 456 A.2d 746, 753 (R.I. 1983). The standard for disqualification must furthermore take into account the realities of modern litigation, which can create many cocounsel relationships in a single case. A judge who arrives on the bench after years as a practicing attorney may have had countless cocounsel relationships. To require disqualification for a prior cocounsel association that is minimal and does not include a present financial interest or any other business or social relationship would place a burden on the judicial system that is in our opinion without justification.

The legislative history of 28 U.S.C. § 455, the federal statute that was patterned after Canon 3 C, provides that “while the proposed legislation would adopt an objective test, it is not designed to alter the standard of appellate review on disqualification issues. The issue of disqualification is a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion.” 13061-9 House Reports, 93d Cong., 2d Sess., No. 93-11, 453, p. 5. We are persuaded that Judge Kaplan did not abuse his discretion in this case. A trial judge is not required to disqualify himself when there is insufficient cause to do so.

The judgment of the Appellate Court is reversed and the case is remanded to that court for consideration of the merits of the remaining issues raised by the defendant’s appeal.

In this opinion the other justices concurred.

       The defendant claimed that the trial court erred in: (1) determining the division of property; (2) failing to award the defendant alimony; (3) failing to award attorney’s fees to the defendant; and (4) denying the motions to reargue, for an evidentiary hearing, and for disqualification of the trial judge. Because of its decision on the motion for disqualification, the Appellate Court found it unnecessary to decide the remaining issues.

       The law firm of Trantolo and Trantolo had represented the administratrix initially.

       The Nesko case was brought by the administratrix of the estate of a boy killed in a school bus accident. Attorney C. Michael Budlong represented the spouse of the administratrix in a pending dissolution action, and the record indicates that his appearance in the Nesko case was for the purpose of representing the interests of the administratrix’ spouse.

       The dispute over legal fees arose between the law firm of Trantolo and Trantolo, the plaintiff’s attorney C. Michael Budlong, and the trial judge’s successor firm. Trantolo and Trantolo corresponded directly with Judge Kaplan regarding the fee dispute but he informed them that he was not involved and there was no further correspondence on the matter.

       The facts of this case do not bring it within the scope of General Statutes § 51-39, which relates to the disqualification of judges “by relationship or interest.”

       The Appellate Court noted that, at one point in the hearings on the motion to disqualify, the judge stated “ T handled that file for [the Nesko plaintiff]’ Bonelli v. Bonelli, 18 Conn. App. 207, 209, 557 A.2d 559 (1989); however, it is clear from the context of that statement that the judge was referring to the initial consultation with the Nesko plaintiff.

       See footnote 3, supra.