author: Callahan, J.

text:
    State of Connecticut v. Frederick Nugent
    (12475)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.

      Argued February 4
    decision released May 6, 1986

      JohnR. Williams, with whom, on the brief, was Beth Merkin, law student intern, for the appellant (defendant).

      Julia DiCocco Dewey, assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Michael Dearington, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant was charged in a substitute information with kidnapping in the second degree, burglary in the third degree, and assault in the third degree. After a jury trial, he was convicted of kidnapping in the second degree in violation of General Statutes § 53a-94 and acquitted of the other two charges. The trial court sentenced the defendant to a term of imprisonment of four years, suspended the execution of the sentence and placed him on probation. The defendant was also assessed a fine in the amount of $2000.

The defendant claims on appeal that the trial court erred: (1) by failing to charge the jury on the defense of mistake of law under General Statutes § 53a-6; (2) by charging the jury that as a matter of law the restraint of the victim by the defendant was unlawful; and (3) by denying the defendant’s motion for a judgment of acquittal at the close of the state’s case. The defendant also claims that he was denied the effective assistance of counsel. We conclude that the trial court erred by charging the jury that the restraint of the victim by the defendant was unlawful as a matter of law. Since the disposition of this claim is dispositive of the case, we do not consider the defendant’s other claims of error.

The defendant was a professional bail bondsman who wrote bail bonds as an agent for the Peerless Insurance Company. On June 3, 1983, he posted a bail bond in the amount of $500 for William Barraso. Prior to June 3, Barraso had been arrested under the name of William Shea and confined in lieu of bond in New Haven on charges of larceny in the sixth degree, and failure to appear in the second degree. On June 7,1983, Barraso appeared in court and his case was continued until June 14, 1983. On June 14, Barraso failed to appear as scheduled in geographical area number six in New Haven. On that date, the court, Maiocco, J., called and forfeited the $500 bond posted by the defendant and ordered that a rearrest warrant be issued for Barraso. The defendant was notified of the bond forfeiture shortly thereafter and a rearrest warrant was issued on either June 28 or June 30, 1983.

On the evening of July 18, 1983, while the rearrest warrant was outstanding the defendant was notified by Robert McLellan that Barraso could be located in a rooming house at 73 Whitney Avenue in New Haven. McLellan resided at the same rooming house and had known Barraso for three or four years. He had induced the defendant to post Barraso’s bond and was apprehensive that he might have some personal liability on the bond if Barraso did not fulfill his obligation to appear in court. After being contacted by McLellan, the defendant went to New Haven police headquarters that same evening and inquired of Sergeant Michael Sweeney, who was in charge of the detention area, whether there were outstanding warrants for Barraso. Sweeney called the records division on the telephone and, because he was busy, handed the phone to the defendant to allow him to ascertain the requested information for himself. The defendant testified that at that time he was told there were two outstanding arrest warrants for Barraso.

At about 10 p.m. the defendant met McLellan and they went to 73 Whitney Avenue. McLellan, who had a key, admitted them to the building and they proceeded to a room rented by James Shea. Shea was a friend of Barraso and Barraso frequently slept in his room. While McLellan was knocking on the door to gain admittance, James Shea arrived in the hallway outside his room, opened the door, and McLellan and the defendant entered. The defendant confronted Barraso, who had been sleeping, and requested him to dress and accompany him and McLellan to New Haven police headquarters to turn himself in. Barraso protested and told the defendant he would “straighten it out tomorrow.” The defendant persisted and Barraso reluctantly dressed and accompanied the defendant and McLellan. Once outside the building he bolted, but after a short chase he was caught by the defendant, placed in the back seat of the defendant’s automobile and driven to New Haven police headquarters.

When the trio arrived at headquarters at about 10:30 p.m., Sweeney was still on duty in the detention area. The defendant told Sweeney that Barraso had come to turn himself in voluntarily. After observing the situation and talking with Barraso, Sweeney concluded that Barraso had not appeared at headquarters voluntarily and inquired of the defendant whether he had a “bail piece.” See General Statutes § 54-65. The defendant said that he did not but that there were outstanding arrest warrants. Sweeney then checked with the records division and was told that the only active warrant for Barraso was a West Haven arrest warrant and that there were no New Haven warrants. The record is unclear as to the reason, but apparently the rearrest warrant issued at the end of June by the Superior Court in geographical area number six was not yet at New Haven police headquarters. At that point, Sweeney had Barraso arrested on the West Haven warrant and he arrested the defendant and McLellan for the unlawful restraint of Barraso.

At trial, in response to questions by the prosecutor, the defendant opined that he had no right because of his status as a professional bondsman to take Barraso into custody or restrain him despite the fact that Barraso had failed to appear in eourt on June 14, his bond had been forfeited, and a rearrest warrant issued. Nugent’s defense rather was that Barraso had accompanied him and McLellan to police headquarters voluntarily and both he and McLellan testified to that effect. There was sufficient evidence, however, for the jury to find that Barraso had been restrained and forced to accompany the defendant and McLellan.

At the conclusion of the evidence, the trial court charged the jury that the defendant had no special arrest powers and no authority exceeding that of a private citizen to apprehend and detain Barraso. It also instructed the jury that the rearrest warrant was directed to a “proper officer,” and that the defendant was not a “proper officer” and had no authority by virtue of the warrant to arrest Barraso. The trial court then referred to the factual situation and charged the jury that, as a matter of law, the defendant had no authority to arrest Barraso. It defined “arrest” as meaning “to deprive another of his liberty. That is, to take custody of him.”

The defendant contends that the trial court’s instructions in this regard were erroneous and that the erroneous instructions created a conclusive presumption that the restraint of the victim was unlawful. Unlawful restraint of the victim is an essential element of the crime of kidnapping. See General Statutes § 53a-91 (1) and (2). The defendant argues, therefore, that he was deprived of due process of law because the instruction permitted the jury to convict him without finding a necessary element of the crime proved beyond a reasonable doubt. Sandstrom v. Montana, 442 U.S. 510, 517, 522, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); In re Winship, 397 U.S. 358, 363-64, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Morrisette v. United States, 342 U.S. 246, 275-76, 72 S. Ct. 240, 96 L. Ed. 288 (1952). This claim was not raised at trial. Since the record adequately supports a claim that the defendant was deprived of a fundamental constitutional right and a fair trial, however, we will review it. State v. Kurvin, 186 Conn. 555, 558, 442 A.2d 1327 (1982); State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The common law confers on the surety on a bail bond the right to apprehend and deliver his principal in discharge of his bail at any time. Taylor v. Taintor, 83 U.S. 366, 371, 21 L. Ed. 287 (1873); Read v. Case, 4 Conn. 166, 170 (1822). This right has been upheld when a bondsman forcibly entered his principal's home in the middle of the night; Read v. Case, supra, 170; when a bondsman pursued his principal beyond state lines; Fitzpatrick v. Williams, 46 F.2d 40, 41 (5th Cir. 1931); and when the bondsman used physical force in the act of apprehending his principal. Nicolls v. Ingersoll, 7 Johns. 145 (N.Y. Sup. Ct. 1810); see note, “The Hunters and The Hunted: Rights and Liabilities of Bailbondsmen,” 6 Fordham Urb. L.J. 333 (1978).

Bail is considered a continuation of the original imprisonment. In Taylor v. Taintor, a case which arose out of a Connecticut bail bond, the United States Supreme Court said: “When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is a continuance of the original imprisonment. Whenever they may chose to do so, they may seize him and deliver him up in their discharge; and if that can not be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. [Citations omitted.] In [Anonymous, 6 Mod. 231 (1703),] it is said, ‘The bail have their principal on a string, and may pull the string whenever they please and render him in their discharge.’” Taylor v. Taintor, supra, 371; Carlson v. Landon, 342 U.S. 524, 547, 72 S. Ct. 525, 96 L. Ed. 547 (1952); Reese v. United States, 76 U.S. 13, 21, 19 L. Ed. 541 (1869); United States v. Lee, 170 F. 613, 614 (S.D. Ohio 1909). “The right of the bail over his principal, whether exercised personally or by delegation, is too well established to require any observation. I will barely remark, that the law supposes the principal to be always in the custody of his bail; and if he is not in fact, the bail may take him, when and where he pleases.” Reed v. Case, supra, 170. “The custody of bail is a continuation of the original imprisonment.” State v. Bates, 140 Conn. 326, 330, 99 A.2d 133 (1953); In re Lexington Surety & Indemnity Co., 272 N.Y. 210, 213-14, 5 N.E.2d 204 (1936).

The obligation of the bail bondsman is to ensure his principal’s appearance in court; State v. Ohayon, 12 Ohio App. 3d 162, 163, 467 N.E.2d 908 (1983); and he may use whatever reasonable means are necessary to fulfill that obligation. Absent a statute, he requires no legal process, judicial or administrative, to effect that purpose. The right of the surety to apprehend his principal arises from the furnishing of the bail bond. “The right of the surety to recapture his principal is not a matter of criminal procedure, but arises from the private undertaking implied in the furnishing of the bond. [Citation omitted.] It is not a right of the state but of the surety.” Fitzpatrick v. Williams, supra, 40. Further, “[t]he giving of security is not the full measure of the bail’s obligation; it is hornbook law that the accused is delivered into the custody of the bail and the bail is bound to redeliver him so far as he can. It does not discharge the bail from that duty merely to abandon the security. The bail must assist in arresting the convict so far as possible; security is no substitute.” United States v. Field, 190 F.2d 554, 555 (2d Cir. 1951). “The condition of the bond is the appearance of the principal in court on demand. The bail may arrest the principal at any time.” Field v. United States, 193 F.2d 86, 90 (2d Cir. 1951). “Professional Bondsmen in the United States enjoy extraordinary powers to capture and use force to compel preemptory return of a bail jumper. They may do so not only in the state where the bail was granted, but in other states as well, without resort to public authorities, either to the police to effect arrest or the appropriate state officials to bring about extradition.” Rear v. Hilton, 699 F.2d 181, 182 (4th Cir. 1983).

In Connecticut the common law right of a bail bondsman to apprehend his principal may have been modified by General Statutes § 54-65 and its predecessors. Rice, “Bail and the Administration of Bail in the State of Connecticut,” 4 Conn. L. Rev. 1, 25 (1971). That thesis is debatable, however, since, at the time the original statute was enacted in 1821, the right of a bail bondsman to retake his principal appears to have been firmly entrenched and the statute does not appear to have required the surety to obtain a mittimus but seems rather to have given him an option to apply to the court to seek the aid of the authorities in arresting his principal. See General Statutes (1808 Rev.) title XVI, c. I § 3; Read v. Case, supra, 168. Correspondingly, the present statute is couched in precatory terms and does not appear to require a bail bondsman to seek a mittimus. See Seals v. Hickey, 186 Conn. 337, 346, 441 A.2d 604 (1982). In any event, the statute is prospective and applies only if a surety believes his principal intends to abscond in the future. There is no reason to believe General Statutes § 54-65 has otherwise diminished the power of the surety. Rice, supra, 25. The statute has no application to the facts of this case where after the defendant’s principal had in fact failed to appear in court, his bond had been forfeited and a rearrest warrant had been issued.

General Statutes (Rev. to 1983) § 54-65a, however, does apply to the facts of this case. That statute provides that, whenever a bond in the amount of $500 or more is ordered forfeited because the principal failed to appear in court as conditioned in the bond, the court shall, at the time of ordering the bond forfeited, issue a rearrest warrant or a mittimus directing a proper officer to take the principal into custody. The question then becomes, does this statute abrogate the common law and furnish the bail bondsman’s exclusive remedy when his principal fails to appear according to the terms of his bail bond?

“It is an established rule of statutory construction that statutes are not readily interpreted as abrogating common-law rights.” State v. Assuntino, 173 Conn. 104, 106, 376 A.2d 1091 (1977). It is also a rule of statutory construction that statutes in derogation of the common law are to be strictly construed. McKinley v. Musshorn, 185 Conn. 616, 621, 441 A.2d 600 (1981); Blue Cross & Blue Shield of Connecticut, Inc. v. Mike, 184 Conn. 352, 361, 439 A.2d 1026 (1981); State v. Beauton, 170 Conn. 234, 241, 365 A.2d 1105 (1976). “ ‘No statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.’ Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L. Ed. 892 [1880].” Dennis v. Shaw, 137 Conn. 450, 452, 78 A.2d 691 (1951).

It is obvious from a reading of General Statutes (Rev. to 1983) § 54-65a that it can coexist with the common law right of a bail bondsman to apprehend and surrender his principal. There is nothing in the wording of the statute which abrogates that right and requires the surety to rely on a rearrest warrant or a mittimus to fulfill his obligation. While the statute may provide the bondsman with assistance from the authorities, it does not prohibit him from employing common law sanctioned self-help to return his principal to custody. Further, there is nothing in the scanty legislative history of General Statutes (Rev. to 1983) § 54-65a that indicates a legislative intention to abrogate the common law rights of bail bondsmen. Therefore, if the defendant was an authorized agent of the bonding company and Barraso had failed to appear in court according to the terms of his bail bond, the defendant had an existing common law right to seize him and return him to the custody of the court. The trial court was in error when it instructed the jury that, as a matter of law, the defendant had no authority to arrest Barraso.

The fact that the defendant acted as an agent for an insurance bonding company, a corporation, rather than as an individual bail bondsman licensed under chapter 533 of the General Statutes is of no moment. See Curtis v. Peerless Ins. Co., 299 F. Sup. 429, 435 (D. Minn. 1969). If authorized, he had the same common law right to seize the principal on the bond. The surety may act through an agent. Taylor v. Taintor, supra, 371; Fitzpatrick v. Williams, supra, 40; Curtis v. Peerless Ins. Co., supra, 435.

It is also of no significance that the defendant testified in response to questions by the prosecutor that he did not have the right to seize and detain Barraso. The salient factor is not whether the defendant did or did not think the right existed but whether the right in fact did exist. The defendant’s ignorance of the right does not diminish it. See Dreier v. Upjohn, 196 Conn. 242, 248, 492 A.2d 164 (1985); Farley-Harvey Co. v. Madden, 105 Conn. 679, 684, 136 A. 586 (1927).

The course of action pursued by the defendant is not without its risks and a bondsman might very well be liable in tort if he oversteps the bounds of his authority. McCaleb v. Peerless Ins. Co., 250 F. Sup. 512, 515 (D. Neb. 1965); Bennett v. State, 169 Ga. App. 85, 86, 311 S.E.2d 513 (1983). As anachronistic as it may seem, however, the common law right of a bail bondsman to pursue and apprehend his principal, at least after the principal has failed to appear in court and has forfeited his bond, is alive and well in Connecticut, unless and until the legislature directly addresses the issue.

It is fundamental that the state has the burden of proving all the necessary elements of the crime charged beyond a reasonable doubt. In re Winship, supra, 363-64; State v. Brown, 173 Conn. 254, 260, 377 A.2d 268 (1977). A necessary element of kidnapping in the second degree is that the restraint of the victim be unlawful. See General Statutes §§ 53a-94 (a) and 53a-91 (1), (2). In view of our holding, the state failed to prove that element at the trial. Further, in its brief on appeal, the state concedes that the defendant was a professional bail bondsman who apprehended his principal after the principal failed to appear in court. We are constrained therefore to conclude that there is no issue of fact to submit to a jury on a retrial.

There is error, the judgment is set aside and the case is remanded with direction to render a judgment that the defendant is not guilty of kidnapping in the second degree.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-94. “kidnapping in the second degree: class B felony, (a) A person is guilty of kidnapping in the second degree when he abducts another person.
      “(b) Kidnapping in the second degree is a class B felony.”

       “[General Statutes] Sec. 53a-6. effect of IGNORANCE OR MISTAKE, (a) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless: (1) Such factual mistake negates the mental state required for the commission of an offense; or (2) the statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or (3) such factual mistake is of a kind that supports a defense of justification.
      “(b) A person shall not be relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless (1) the law provides that the state of mind established by such mistaken belief constitutes a defense, or unless (2) such mistaken belief is founded upon an official statement of law contained in a statute or other enactment, an administrative order or grant of permission, a judicial decision of a state or federal court, or an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.”

       By “bail piece” Sergeant Sweeney was apparently referring to a mittimus issued under General Statutes § 54-65.

       “[General Statutes] Sec. 53a-91. definitions. The following definitions are applicable to this part:
      “(1) ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein ‘without consent’ means, but is not limited to, (a) deception and (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.
      “(2) ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use physical force or intimidation. ...”

       The party who posts the required amount of bail is commonly called the “bail bondsman” or “surety,” and in older cases is referred to simply as the “bail.” The “principal” is the person who has been arrested and is released on bond pending his scheduled court appearance.

       “[General Statutes] Sec. 54-65. eights of sueety. Any surety in a recognizance in criminal proceedings, who believes that his principal intends to abscond, may apply to a judge of the superior court, produce his bail bond or evidence of his being a surety, and verify the reason of his application by oath or otherwise. Thereupon, the judge shall immediately grant a mittimus, directed to a proper officer or indifferent person, commanding him immediately to arrest the principal and commit him to a community correctional center. The community correctional center administrator shall receive the principal and retain him in a community correctional center until discharged by due order of law. The surrender of the principal shall be a full discharge of the surety upon his bond or recognizance.”

       “[General Statutes (1821 Rev.)]
      “Title 5, Bail. § 8
      “sect. 8. In all cases, where any person or persons, have executed a bail-bond, or entered into a recognizance for the personal appearance of another, and such bail or surety shall afterwards believe that his principal intends to abscond, such bail, or surety, on application to any justice of the peace, in the county in which such principal resides, and producing his bail-bond, or evidence of his being bail or surety, and verifying the reason of his application, by oath or otherwise, it shall be the duty of such justice forthwith to grant a mittimus, directed to the sheriff, his deputy, or constable, or indifferent person of the county in which such application shall be made, commanding such officer or indifferent person, forthwith to arrest such principal, and him commit to the keeper of the common gaol in such county, who is hereby authorised to receive such principal, and him retain in gaol, until discharged by due order of law.”

       “[General Statutes (1808 Rev.)]
      “Title XVI, Bail. Chapter I, § 3
      “§ 3. That in either of the cases aforesaid, every such surety or sureties shall be obliged to satisfy the judgment in case of the principal’s avoidance, and a return of non est inventus on the execution; unless such surety, at or before the time of entering up final judgment, do bring the principal into court, and move to be discharged; upon which the court shall order the keeper of the gaol to receive him into custody, that his body may be taken on the execution.”

       “[General Statutes (Rev. to 1983)] Sec. 54-65a. REARREST for FAILURE TO appear; rebate TO surety, (a) Whenever an arrested person is released upon his execution of a bond with surety in an amount of five hundred dollars or more and such bond is ordered forfeited because the principal failed to appear in court as conditioned in such bond, the court shall, at the time of ordering the bond forfeited, issue a rearrest warrant and a mittimus directing a proper officer to take the defendant into custody and shall order a stay of execution upon the forfeiture for six months. Such stay of execution shall not prevent the issuance of a rearrest warrant.
      “(b) Whenever an arrested person, whose bond has been forfeited, is returned to the jurisdiction of the court within one year of the date such bond was ordered forfeited, the surety on such bond shall be entitled to a rebate of that portion of the forfeited amount as may be fixed by the court or as may be established by a schedule adopted by rule of the judges of the court.”

       “I think it’s a good bill and that it will assist in perhaps apprehending people who have skipped and not appeared in court pursuant to the conditions of the bond.” (Emphasis added.) 20 S. Proc., Pt. 8,1977 Sess., p. 3017, remarks of Senator Salvatore DePiano on H.B. 6909.


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Jeanne F. Bieluch v. William C. Bieluch, Jr.
    (12605)
    Peters, C. J., Healey, Dannehy, Santaniello and Callahan, Js.
    Argued March 6
    decision released May 13, 1986

      William C. Bieluch, Jr., pro se, the appellant (defendant).

      Stuart Turow, certified legal intern, with whom was James A. Trowbridge, for the appellee (plaintiff).
   Peters, C. J.

In this appeal from a judgment of civil contempt, the principal issue is whether the trial court erred in refusing to allow various items as offsets to liability for accrued arrearages for alimony and support. The marriage of the plaintiff, Jeanne F. Bieluch, and the defendant, William C. Bieluch, Jr., was dissolved on November 9, 1981. The dissolution decree awarded custody of the minor children to the plaintiff, with stipulated visitation rights for the defendant. The decree also ordered the defendant to pay the plaintiff $800 a month through a support officer as unallocated alimony and support. Alleging substantial arrearages in this financial order, the plaintiff on February 2,1984, and August 7,1984, applied for orders of contempt or wage execution. After a hearing held on September 25, 1984, the trial court, Landau, J., found an outstanding arrearage of $2800 and held the defendant in contempt. In a subsequent ruling on a motion for modification of the financial order, the trial court, Lewis, J., having found that the defendant had established a substantial change of circumstances because of a diminution of income from his legal practice, ordered a temporary suspension of payments of the existing arrearage and the amounts payable prospectively. The defendant has appealed from the judgment of contempt. We find no error.

The defendant's appeal lists twelve assignments of error. Taken in groups, these arguments claim error in the trial court’s finding of contempt because the trial court: (1) was biased; (2) should have heard the defendant’s motion for modification at the same time as it heard the plaintiff’s motion for contempt; (3) improperly relied on ex parte information from the support enforcement unit and from the plaintiff; (4) improperly implemented a support enforcement statute and an associated form which are unconstitutional; and (5) failed to grant the defendant appropriate credits as an offset against the payments for which he was obligated.

Because the record is insufficient for us to address the first four of these issues, they warrant only summary treatment. It is the appellant who bears the responsibility of providing for this court a record that will enable us to undertake a proper review of the claims on appeal. In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 714-15, 501 A.2d 377 (1985); State v. One 1977 Buick Automobile, 196 Conn. 471, 480, 493 A.2d 874 (1985); Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 407-408, 480 A.2d 552 (1984).

The defendant’s claim of judicial bias must fail because he did not file a motion for disqualification in the trial court. We have repeatedly refused to consider claims of trial court bias in the absence of such a motion. Timm v. Timm, 195 Conn. 202, 203-205, 487 A.2d 191 (1985); Krattenstein v. G. Fox & Co., 155 Conn. 609, 616, 236 A.2d 466 (1967); State v. Kohlfuss, 152 Conn. 625, 631, 211 A.2d 143 (1965). The fact that a trial court rules adversely to a litigant, even if some of these rulings were to be determined on appeal to have been erroneous, does not demonstrate personal bias. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 8, 469 A.2d 778 (1984). The defendant attributes to bias the court’s denial of his motion for a continuance on the day the contempt motion was first scheduled to be heard. Since the court did not persist in its denial, and in fact rescheduled the hearing in accordance with the defendant’s request, its momentary refusal of the defendant’s request was entirely harmless. Unlike the circumstances presented by Cameron v. Cameron, 187 Conn. 163, 168-71, 444 A.2d 915 (1982), nothing on the face of this record demonstrates such a miscarriage of justice as would warrant a finding of plain error in the trial judge’s failure to recuse himself sua sponte.

The defendant’s next claim, that the trial court was required to consider the motion for modification jointly with the motion for contempt finds support neither in the statute; General Statutes § 46b-8; nor in the record, which contains no information about the date of the filing of the motion for modification. The defendant does not argue that the mere fact that a temporary modification was subsequently ordered in and of itself impairs the validity of the prior judgment of contempt.

The record similarly fails to demonstrate in what manner, if any, the trial court misused alleged ex parte communications. The record does not show that the court held any conferences or received any materials that in any way prejudiced this defendant. The defendant’s brief contains no such citations, and the transcript of the trial court proceedings contains no such information.

Finally, the record contains nothing to indicate that the defendant’s constitutional claims concerning the validity of a support enforcement statute; General Statutes § 46b-180; were ever raised in the trial court. Under Practice Book § 3063, these claims need not be considered. Sands v. Sands, 188 Conn. 98, 106, 448 A.2d 822 (1982), cert. denied, 459 U.S. 1148, 103 S. Ct. 792, 74 L. Ed. 2d 997 (1983); Roche v. Fairfield, 186 Conn. 490, 505, 442 A.2d 911 (1982); State v. Packard, 184 Conn. 258, 271, 439 A.2d 983 (1981); Burritt Mutual Savings Bank v. Tucker, 183 Conn. 369, 377, 439 A.2d 396 (1981); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980).

The record does permit review of the defendant’s claim that the trial court, Landau, J., should have recognized various payments allegedly made by the defendant as offsets to his liability to the plaintiff for alimony and child support. At the contempt hearing held on September 25, 1984, the defendant conceded that he had failed to pay $2800 in alimony and child support to the support enforcement unit over a period of several months in violation of a court order. He testified, however, that during the period in which the arrearages had accrued, he had made several direct payments in support of his children, expecting that these payments would be applied to offset amounts that he was required to pay to the support enforcement unit. He also told the court that the plaintiff had agreed to forgive a portion of the amount he owed. Accordingly, he asked the court to subtract these items from his arrearages.

Following the hearing, the trial court issued an order that held the defendant in contempt, found arrearages of $2800, set a schedule of payments for the defendant, and provided for the defendant’s incarceration in the event that he failed to abide by the schedule. In explaining its decision, the trial court noted that it had not “give[n] any credit” to the defendant’s testimony about his alleged offsetting payments and that, therefore, it had not reduced the defendant’s arrearages. On appeal, the defendant argues that, because no evidence adduced at trial contradicted his testimony, the trial court was obligated to accept his statements and to reduce his arrearages by the amount of the offsetting payments. We disagree.

The trial court is not bound by the uncontradicted testimony of any witness. Acheson v. White, 195 Conn. 211, 217, 487 A.2d 197 (1985); Barrila v. Blake, 190 Conn. 631, 639, 461 A.2d 1375 (1983); Friedson v. Westport, 181 Conn. 230, 233, 435 A.2d 17 (1980); Stanton v. Grigley, 177 Conn. 558, 563, 418 A.2d 923 (1979). In evaluating such testimony, the trial court must assess the credibility of the testifying witness and consider the presence or absence of corroborating evidence. Since the trial court as the finder of fact is uniquely competent to determine the credibility and weight to be accorded to evidence, the scope of our review of the trial court’s decision to accept or reject the defendant’s uncontradicted testimony is limited. After considering the totality of the record in the light most favorable to sustaining the trial court’s factual conclusions, we will disturb the trial court’s findings only if we determine that they are clearly erroneous. See Practice Book § 3060D; Fairfield County National Bank v. DeMichely, 185 Conn. 463, 465-66, 441 A.2d 569 (1981); Superior Wire & Paper Products, Ltd. v. Talcott Tool & Machine, Inc., 184 Conn. 10, 17, 441 A.2d 43 (1981); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221, 435 A.2d 24 (1980); see also State v. Braxton, 196 Conn. 685, 691, 495 A.2d 273 (1985); State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984).

In this case, the defendant presented no evidence to substantiate his claim that he had made offsetting payments and that his wife had agreed to relinquish her right to a portion of the amount he owed her. Instead, he relied solely upon his own assertions to convince the trial court of the existence of the offsetting items. The trial court was able to observe the defendant’s demeanor in making these statements and to judge his credibility. It was within that court’s discretion to find that his unsupported allegations were insufficient to warrant a reduction in his arrearages. The trial court was not required to view the plaintiff’s failure to present contradictory testimony as a concession that the defendant’s claims of offsetting items were valid. Throughout the proceeding, the plaintiff persisted in her position that the defendant owed her the full amount of his arrearages. Consequently, in light of this record, we cannot say that the trial court’s decision to give no credence to the defendant’s statements was clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The validity of this decree was upheld upon a prior appeal by the defendant. Bieluch v. Bieluch, 190 Conn. 813, 462 A.2d 1060 (1983).

       Although the defendant appears in this appeal pro se, he is himself an attorney and was represented by counsel during the contempt proceedings.

       The defendant testified that he had paid $50 for the medical treatment of one of his children, $25 to enroll his son in a youth organization, and $50 for football equipment. He also maintained that he paid for several haircuts for his children and for other, unspecified expenses incurred by his children.

       The trial court stated: “He can testify all he wants, he paid $25 to this person and $50 to this person but it’s not going to mean anything. That’s why we pay it right to the Support Bureau.”

       In pursuing this claim, the defendant does not challenge the trial court’s underlying finding of contempt. He only questions the amount that the trial court ordered him to pay. Even if the trial court had credited the defendant’s alleged offsets against the amount he owed the plaintiff, substantial arrearages would have remained.
      At oral argument before this court, the defendant alluded to certain alleged irregularities in the procedure that the trial court employed in conducting the contempt hearing. Because the defendant has not raised this issue in his brief, we do not discuss it here. See State v. Wright, 197 Conn. 588, 595, 500 A.2d 547 (1985); Varley v. Varley, 170 Conn. 455, 457, 365 A.2d 1212 (1976).

       The appellate record contains no exhibits documenting the defendant’s claim.


author: Dannehy, J.

text:
    State of Connecticut v. Ralph Vaughn, Jr.
    (11891)
    Healey, Shea, Dannehy, Santaniello and Callahan, Js.
    Argued January 16
    decision released May 13, 1986

      Thomas J. Ullman, assistant public defender, with whom was Joette Katz, public defender, for the appellant (defendant).

      Robert J. O’Brien, assistant state’s attorney, with whom, on the brief, were Arnold,Markle, state’s attorney, and Roseann Bocciarelli, legal intern, for the ■ appellee (state).
   Dannehy, J.

The defendant, Ralph Vaughn, Jr., was charged with the crime of robbery in the second degree in violation of General Statutes § 53a-135 (a) (1). The defendant moved before trial for a lineup and to suppress identification testimony. After an evidentiary hearing, the court, Chemauskas, J., denied the defendant’s pretrial motions. Following a jury trial in which the defendant was found guilty of the lesser included offense of robbery in the third degree in violation of General Statutes § 53a-136, he was sentenced to a term of imprisonment of five years. In his appeal the defendant contends that the trial court erred in refusing to order a pretrial lineup and in denying his motion to suppress identification testimony. These contentions are interrelated and the contention basic to the entire argument is the reliability of the identification testimony of the victim of the robbery. The defendant also argues that the trial court committed reversible error by admitting evidence that related to other crimes. We find no error.

The testimony adduced at the hearing on the pretrial motions for a lineup and to suppress identification testimony was substantially the same as that given at trial. The evidence presented was not complicated. To the contrary, the principal issue of fact before the jury was whether they believed the victim and his identification testimony despite the testimony of the defendant and his alibi witnesses.

There is no controversy as to the occurrence of the robbery itself. The victim, Eugene Cornelius, testified that at about 8:15 in the evening of November 19,1981, he was walking on Chapel Street near the corner of Kensington Street in New Haven when he was accosted by two men. The street lighting was good in the area and nothing obstructed his view of the two men facing him. He saw one of the men step toward him, and, for several seconds, Cornelius stood staring at the man he identified as the defendant, who was only about six feet away and closing in upon him. The man was unmasked and made no attempt to hide his identity. Cornelius consistently testified that he was positive of his identification of the defendant, but that he had not had the opportunity to get a good view of the other man. Throughout the period he eyed him continuously until he was distracted by something he heard behind him. As he turned his head forward to face the defendant again, Cornelius was struck and slumped to the sidewalk where he collapsed. He awoke while the robbers were going through his pockets. They stole his wedding ring, wristwatch, briefcase and his wallet which contained money, charge cards, his driver’s license and a Mobil credit card. After the robbers ran away, the victim found his glasses which had fallen off and he called the police.

New Haven police department officers Phillip Timothy and Dennis Kelly were on patrol duty when they were dispatched to the intersection of Chapel and Kensington Streets. There they found Cornelius. He was described by the police as upset and physically battered, and his face was described as bruised, bleeding, and his teeth as chipped. Cornelius was briefly questioned. He stated that he had just been mugged by four black males; that he was hit from behind; and that he did not see the person who assaulted him. Cornelius said on this occasion that he was unable to identify any of his assailants. He later testified that throughout the time he was with the police officers he was dazed and in pain, emotionally disturbed and afraid. Shortly thereafter the victim was taken by Timothy to a nearby hospital for medical assistance. Kelly remained at the scene of the crime to continue the investigation. He found nothing. He then rejoined Timothy at the hospital. Further questioning elicited no additional information. Before leaving Cornelius at the hospital, both officers advised him that if he had any further information to contact the police department. Kelly also informed him that photographs were available at the police department, if he wanted to view them.

The next day while he was at the office of his dentist to undergo treatment of his damaged teeth, Cornelius recalled his encounter with the defendant on the previous evening. What happened was clear in his recollection. He remembered the defiant, fearless expression on the defendant’s face. He recalled how he stood only about six feet from the defendant and, aided by the illumination provided by good street lighting, observed that the man before him was a muscular black male, about twenty-five years old, five feet, five or six inches tall, weighing approximately 150 pounds, of average complexion, with very short hair and no distinctive facial features or facial hair except a small mustache. Later that day he wrote down a description of the defendant. On November 21,1981, Cornelius contacted the police with reference to his briefcase. He then went with a police escort to the intersection of Chapel and Kensington Streets. A search for the briefcase was fruitless. He did not indicate to the police at that time that he could identify any of the robbers.

Nothing else happened until the middle of January, 1982. About that time Cornelius was furnished a statement indicating the current balance of his Mobil credit card. The summary of activity showed charges for gasoline he had not purchased. Cornelius immediately contacted the police. Officer Stephen Dunn was assigned to investigate the misuse of the credit card. On February 5,1982, Cornelius told Dunn that only one person assaulted him and described his assailant as a short, black male with a stocky build. On February 9, 1982, Cornelius notified Dunn that he had received by mail an envelope which contained his driver’s license. On February 12, 1982, Cornelius and Dunn exchanged additional information. Dunn reported to Cornelius that he had recovered the Mobil credit card and had interviewed the attendant at the gasoline station where the credit card was used. Cornelius then disclosed to Dunn that he could identify the person who struck him. He told Dunn that he had written down a detailed description of the man on the day following the robbery, including the man’s height, weight, build, age and hair length. Dunn at once suggested that the victim attempt to make a photographic identification. Cornelius gave further details of the description in the course of arrangements for a photographic array. Before he looked at any pictures Cornelius gave his written description of the defendant to Dunn.

On February 24, 1982, Dunn brought Cornelius an array of twelve photographs and asked him to take his time and to look at the photographs. Cornelius scrutinized the pictures, removed three or four from the array, and looked at the remaining photographs for about one minute. He picked out the defendant’s picture and told Dunn he was positive he had selected his attacker’s picture. At trial, Cornelius testified that he was robbed on November 19, 1981, that he had an opportunity to observe the man he identified as the defendant at close quarters for several seconds in good lighting, that he wrote down a detailed description of the man on the day following the robbery, that he did not tell the police what he had done or give them the written description until February 24,1982, that he had been shown twelve photographs on February 24,1982, and that he had identified one photograph as that of the robber facing him on November 19, 1981.

The defendant’s first contention was raised by a request for a pretrial lineup. After hearing evidence, the trial judge refused the request. This ruling the defendant contends is error. In support of this contention, the defendant argues that since identification of the defendant was the main issue at trial, it was an abuse of discretion for the trial judge to refuse his request for a corporeal lineup. This argument is based on the theory that it was improper to show the victim photographs which made it possible for him to identify in court not the defendant, but the person whose picture he had previously selected from the array prepared by the police. The defendant urges condemnation of any identification procedure which utilizes photographs, even though prior to arrest, unless the danger that use of the technique may result in conviction based on misidentification is lessened by a defendant’s right to a corporeal lineup.

A defendant does not have a constitutional right to a lineup. United States v. Sebetich, 776 F.2d 412, 420 (3d Cir. 1985); United States v. Archibald, 734 F.2d 938, 941 (2d Cir. 1984); United States v. Brown, 699 F.2d 585, 593 (2d Cir. 1983). “If the state has not employed unduly suggestive methods of identification, its only remaining duty is to prove beyond a. reasonable doubt at trial that the identification is correct.” State v. Vass, 191 Conn. 604, 611, 469 A.2d 767 (1983); see State v. Ledbetter, 185 Conn. 607, 612, 441 A.2d 595 (1981); State v. Williams, 170 Conn. 618, 626-27, 368 A.2d 140 (1976). The only provision for a lineup is that contained in Practice Book § 782. Under that section, the “judicial authority by order may direct the prosecuting authority to arrange for the defendant’s participation in [a lineup] if the judicial authority finds that the evidence sought could contribute to an adequate defense.” A ruling under Practice Book § 782 is within the sound discretion of the trial court. We do not believe that this discretion was abused in light of our disposition of the defendant’s remaining claims.

The defendant claims that the pretrial photographic identification was unduly suggestive and irreparably tainted the victim’s subsequent identification of the defendant in court. “We have repeatedly held that a conviction based on an in-court identification which follows an out-of-court photographic identification will be set aside only ‘if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ State v. Fullwood, 193 Conn. 238, 243-44, 476 A.2d 550 (1984), quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Vass, [supra, 609]; State v. Doolittle, 189 Conn. 183, 190, 455 A.2d 843 (1983). ‘ “A defendant who moves to suppress identification evidence bears the initial burden of proving that the identification resulted from an unconstitutional procedure.” ’ State v. Hinton, 196 Conn. 289, 293, 493 A.2d 836 (1985); State v. Fullwood, supra, 244. The determination whether an identification procedure has violated a defendant’s due process rights must be made on an ad hoc basis. The inquiry is two-pronged: ‘ “[F]irst, it must be determined whether the identification procedure was unnecessarily suggestive; and second, if it is found to have been so, it must be determined whether the identification was nevertheless reliable based on examination of the ‘totality of the circumstances.’ ” ’ State v. Hinton, supra, 292-93, quoting State v. Theriault, 182 Conn. 366, 371-72, 438 A.2d 432 (1980); State v. Austin, 195 Conn. 496, 499, 488 A.2d 1250 (1985).” State v. Parker, 197 Conn. 595, 598, 500 A.2d 551 (1985).

The defendant concedes that the photographic array was not presented to Cornelius in a suggestive manner. He contends, rather, that Cornelius may have been subliminally influenced by marginally perceptible differences in the photographs themselves. He claims that four of the photographs depict “dark skinned black males,” another shows a “light skinned . . . black male,” while the defendant is a “black male of medium complexion.” The defendant purports to eliminate two additional photographs as depicting black males “significantly older” than he. The defendant concludes that “[t]his leaves five photos,” with only his own depicting an individual in a “light colored shirt, seemingly standing out within that group.”

We have viewed the challenged array and agree with the defendant that any suggestiveness based on skin color or age of the individuals depicted, or on the color of their shirts, would indeed, and at best, be subliminal. Any array composed of different individuals must necessarily contain certain differences. Four of the individuals depicted are wearing light colored shirts or sweaters. Four others are wearing dark outer garments. The remaining four are wearing either dark colored sweatshirts or light colored outer garments. In short, all of the photographs show individuals wearing a normal variety of clothes. All of the photographs show individuals who appear to range in age from the early twenties to the early thirties. The defendant appears to fall somewhere in the middle of this age group. The black and white photos used in the array were obviously taken at different exposures. Thus, it is nearly impossible to distinguish between varying shades of actual skin color. In any event, the defendant’s skin color is not significantly lighter or significantly darker than that of any other individual shown in the array. We fail to perceive the differences noted by the defendant.

The defendant raises a more substantial claim that his photograph bears the date of February 11, 1982. That date is significant because on February 12,1982, Dunn called Cornelius to inform him that police had recovered his stolen credit card, and that a suspect had been apprehended. While the dates on the police placards should have been covered, there is nothing in the record to indicate that Cornelius even noticed them when he was asked to view the array. Moreover, ten of the twelve placards in the photographs show dates ranging between January 27,1982, and February 13, 1982. Thus, to the extent that Cornelius observed and considered the dates on the photographs, he would have had to select among ten individuals arrested during the relevant period. We hold that the array used in this case was not unnecessarily suggestive, and, therefore, we need not consider the defendant’s further claim that it was unreliable.

There was also testimony that the victim’s Mobil credit card was traced to the defendant. A gasoline station attendant identified the defendant as having used the victim’s credit card on four or five occasions. He also identified the credit card slips bearing his initials and followed by the victim’s signature as written by the defendant. Prior to trial, the defendant filed a motion to exclude any evidence concerning the use by the defendant of the victim’s stolen Mobil credit card. The motion was denied. At trial, the defendant objected to the testimony being admitted into evidence, and the objection was overruled.

While it is true that evidence of crimes which are independent of those for which a defendant is on trial is generally inadmissible, it is also true that evidence of other crimes is admissible when the evidence is substantially relevant for some other purpose than to show that the defendant committed the crime on trial because of his criminal character. State v. Crosby, 196 Conn. 185, 190, 491 A.2d 1092 (1985); State v. Esposito, 192 Conn. 166, 169, 471 A.2d 949 (1984); State v. Braman, 191 Conn. 670, 676, 469 A.2d 760 (1983); State v. Howard, 187 Conn. 681, 685, 447 A.2d 1167 (1982). In this case the testimony of the gasoline station attendant was properly admitted as tending to show the identity of the person charged with the commission of the crime on trial. There was ample reason to admit the testimony and there was no abuse of discretion by the trial judge in its admission.

The defendant attempted to refute the evidence implicating him by establishing an alibi defense supported by the testimony of others. He called Allen Felder who testified that the defendant found the Mobil credit card in Ivy Park in New Haven sometime in November or December of 1981. Charlotte Vaughn, his mother, and Yvette Reddick, his girlfriend and the mother of his child, testified that the defendant was in Brooklyn, New York, on the date of the robbery. The credibility of such witnesses was a question for the jury. The jury decided the question adversely to the defendant. State v. Monk, 198 Conn. 430, 435, 503 A.2d 591 (1986); State v. Hart, 198 Conn. 424, 427-28, 503 A.2d 588 (1986).

There is no error.

In this opinion the other judges concurred.


author: Per Curiam.

text:
    Housing Authority of the City of New Haven v. P. Joseph Peraro, Commissioner of the Department of Labor, et al.
    (12693)
    Peters, C. J., Healey, Shea, Dannehy and Santaniello, Js.

      Argued April 2
    decision released May 13, 1986

      Eugene N. Sosnoff, for the appellant (plaintiff).

      Richard T. Sponzo, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Robert E. Walsh, assistant attorney general, for the appellees (named defendant et al.).

      J. William Gagne, Jr., with whom, on the brief, was Debra A. Broten, for the appellees (defendant Dominick Lucenti et al.).
   Per Curiam.

This case is an action for a permanent

injunction to enjoin the defendants and all persons acting on their behalf from proceeding with arbitration under the aegis and control of the defendant Connecticut state board of mediation and arbitration. The plaintiff, the housing authority of the city of New Haven, sought the replacement of the defendant board, which was the arbitrator designated in the plaintiffs collective bargaining agreement with the defendant unions, Local 713 of Council 4, AFSCME, AFL-CIO and Council 4, AFSCME, AFL-CIO, with some other unspecified fair and impartial arbitrators. The plaintiff has appealed from the judgment of the trial court, which, after an extensive hearing, found the issues for the defendants. We find no error.

The underlying issue at trial and on this appeal is whether the defendant board’s system for scheduling the arbitration of grievances manifested such partiality toward the defendant unions as to require the total disqualification of the defendant board and the appointment of some other arbitral tribunal. The trial court in a lengthy and detailed memorandum of decision; Housing Authority v. Peraro, 40 Conn. Sup. 365, 509 A.2d 569 (1986); fully addressed this issue and, relying in part on its appraisal of the credibility of the witnesses, concluded that the plaintiff had not established its right to obtain the sweeping relief that it sought. It bears emphasis that the trial court did not condone the manner in which the board had implemented its decision to allocate scarce resources for the hearing of grievances. We agree with the trial court that the board’s scheduling arrangements, to the extent that they were not fully disclosed to all affected parties, departed from fair and sound administrative practices and procedures. We also agree with the trial court, however, that the plaintiff has failed to prove its allegations of resultant bias and prejudice in the entire panel of gubernatorially appointed arbitrators.

Our examination of the record on appeal and the briefs and arguments of the parties persuades us that there is no error in the judgment from which the appeal was taken. We adopt the well reasoned decision of the trial court as a statement of the facts and the applicable law. It would serve no useful purpose for us to repeat the discussion therein contained.

There is no error.

       In addition to the board of mediation and arbitration and the unions, the defendants were: P. Joseph Peraro, as commissioner of the Connecticut department of labor; the Connecticut department of labor; A.D. Joseph Emerzian, as chairman of the board of mediation and arbitration; and Dominick Lucenti, as deputy director of Council 4, AFSCME, AFL-CIO.


text:
    Wilma Dei Cas, Executrix (Estate of Mary B. Shaw), et al. v. Marie Mayfield et al.
    (12688)
    Peters, C. J., Shea, Santaniello, Callahan and Moraghan, Js.
    Argued February 11
    decision released May 13, 1986

      Wesley W. Horton, with whom were Alexandra Davis and, on the brief, William R. Moller and Richard C. Stewart, for the appellant (named defendant).

      Sandra M. McLean, with whom was C. IanMcLachlan, for the appellees (plaintiffs).
   Callahan, J.

The defendant, Marie Mayfield, has appealed from a judgment rendered by the Appellate Court in favor of the plaintiff, Wilma Dei Cas. The sole issue on appeal is whether the Appellate Court erred when it construed the language of the will of William Shaw, the father of both the plaintiff and the defendant, to give his wife, and their mother, Mary B. Shaw, a fee simple absolute in realty that he owned in New Canaan, rather than a life estate with a vested remainder in the children as urged by the defendant. Dei Cas v. Mayfield, 3 Conn. App. 106, 111, 485 A.2d 584 (1985). We find no error.

The opinion of the Appellate Court describes both the underlying facts and the procedural history of this case. Id., 106-107. Briefly, William Shaw executed a will in 1938 and died in 1944. The relevant language of his will is as follows: “Second: I give devise and bequeath all of the property of which I die seized be the same real, personal, or mixed, or where-so-ever situated, to my beloved wife, Mary B. Shaw, for her own proper use and benefit, forever. I do this knowing that my said wife will make proper provisions for any child or children then living.

“Third: At the death of my said wife, I direct all of the property then remaining shall be divided among my children, then surviving, share and share alike.

“Fourth: In the event that my wife should die at or near the time of my decease and before my children are of legal age and able to care for themselves, I hereby appoint my brother, Richard Shaw, as their guardian. Should this happen I appoint said Richard Shaw as the executor of my last will and testament.”

Paragraphs “Second” and “Third” of the will appear to be inconsistent on the issue of whether the will gives Mary B. Shaw a life estate or a fee simple absolute in the subject real estate. The defendant claims that Mary B. Shaw acquired only a life estate in the realty, with the power to consume it during her lifetime, but that she could not dispose of it by will on her death. It is the plaintiffs contention that Mary B. Shaw was devised a fee simple absolute, without limitation, and that she could dispose of it by will.

Mary B. Shaw died on January 15, 1981, leaving a last will and testament in which she gave the plaintiff the right to purchase from her estate, at a price greatly below market value, real estate on Ponus Ridge Road in New Canaan, the title to which she had acquired by the will of her husband William Shaw. If William Shaw’s will gave Mary B. Shaw only a life estate, the disposition to the plaintiff in her will would be void. If, on the other hand, Mary B. Shaw had acquired a fee simple absolute under the terms of William Shaw’s will, the disposition to the plaintiff would be valid.

The trial court held that Mary B. Shaw inherited only a life estate and therefore all the property that remained unexpended at her death passed in equal shares to William Shaw’s daughters, the plaintiff and the defendant, under the terms of his will. The plaintiff appealed to the Appellate Court. The Appellate Court found error and held that, under the will of William Shaw, Mary B. Shaw had acquired a fee simple absolute in the realty. Dei Cas v. Mayfield, supra, 111. The defendant sought and this court granted certification. “In an appeal, after certification from the judgment of the Appellate Court, ‘the focus of our review is not the actions of the trial court, but the actions of the Appellate Court. We do not hear the appeal de novo.’ State v. Torrence, 196 Conn. 430, 433, 493 A.2d 865 (1985).” White Oak Corporation v. Department of Revenue Services, 198 Conn. 413, 418, 503 A.2d 582 (1986). In the present case, therefore, we need determine only whether the Appellate Court erred in concluding that Mary B. Shaw had acquired, by the will of William Shaw, a fee simple absolute in the realty in question which she could dispose of by her will.

“The cardinal rule to be followed in construing a will is to find and effectuate the intent of the testator. In seeking that intent, the court looks first to the will itself and examines the words and language used in the light of the circumstances under which the will was written. Chase National Bank v. Guthrie, 139 Conn. 178, 182, 90 A.2d 643 [1952]; First National Bank & Trust Co. v. Parish of St. Thomas’ Church, 141 Conn. 489, 497, 107 A.2d 246 [1954]. To ascertain the intent of a particular provision, the will must be read as a whole to discover whether it discloses an underlying intent which should be considered in finding the meaning to be accorded to the particular language under construction. Bankers Trust Co. v. Pearson, 140 Conn. 332, 345, 99 A.2d 224 [1953].” Hartford National Bank & Trust Co. v. Devitt, 145 Conn. 384, 388, 143 A.2d 441 (1958). The apparent inconsistencies of paragraphs “Second” and “Third,” therefore, must be harmonized if possible in a way that will preserve the intent of the testator. We believe that the construction given the will by the Appellate Court, which held that Mary B. Shaw received an estate which was subject to defeasance only in the event that she predeceased the testator and is therefore an absolute estate in fee simple, preserves William Shaw’s intent.

We disagree, however, with the position of the Appellate Court that “the language of William Shaw’s will does not involve a clause which contains an express and positive devise in fee . . . .” Dei Cas v. Mayfield, supra, 110. We conclude, rather, that the clause contained in the second paragraph of the will which reads, “I give devise and bequeath all of the property of which I die seized be the same real, personal, or mixed, or where-so-ever situated, to my beloved wife, Mary B. Shaw, for her own proper use and benefit, forever,” was clearly intended to give Mary Shaw an estate in fee simple. “An intention to pass an absolute estate in property is manifested by the direction that testator gives, devises and bequeaths it to a named person . . . In re Morris’Estate, 125 N.Y.S.2d 60, 61-62 (1953). The words “give and devise,” or either of them would be held sufficient to carry the fee where the estate is created by will. Burr v. Tierney, 99 Conn. 647, 651, 122 A. 454 (1923). Further, the word “forever” is appropriately used in testamentary language devising an absolute estate; see Belcher v. Phelps, 109 Conn. 7, 12, 144 A. 659 (1929); and the words “own use and benefit” when construed in conjunction with “forever” do not create an ambiguity. The customary words “heirs and assigns” are missing but they are not necessary to create a fee. Dennen v. Searle, 149 Conn. 126, 136, 176 A.2d 561 (1961); Cumming v. Pendleton, 112 Conn. 569, 573, 153 A. 175 (1931); White v. White, 52 Conn. 518, 520 (1885). Additionally, a common sense reading of the precatory language in the sentence in paragraph “Second” which reads, “I do this knowing that my said wife will make proper provisions for any child or children then living,” manifests an intention on the part of the testator that his wife take a fee estate and an assumption that she would make proper provision for the children.

An accepted canon of construction is “that a clear bequest of an absolute estate is not to be cut down to a lesser estate by subsequent provisions unless those subsequent provisions are at least equally clear. See Stanton v. Stanton, 140 Conn. 504, 511, 101 A.2d 789 [1953].” Pond v. Porter, 141 Conn. 56, 65, 104 A.2d 228, cert. denied sub nom. Glover v. Officers & Minis ter of the Congregational Church of Hartford, 348 U.S. 825, 75 S. Ct. 39, 99 L. Ed. 650 (1954). Since we hold that paragraph “Second” clearly creates an absolute estate, that estate is not diminished by the provisions of paragraph “Third,” which are ambiguous and capable of two interpretations. The reference in paragraph “Third” to the property “then remaining” at “the death of my said wife” could be construed, as the Appellate Court noted, to refer either to the property remaining if Mary B. Shaw died in the lifetime of the testator, or to the property remaining if she died subsequent to the death of the testator. Dei Cas v. Mayfield, supra, 110-11. We think it more reasonable that, in light of the situation of William Shaw who was married and had two young daughters at the time his will was executed, paragraph “Third,” while inartfully drafted, refers to the disposition of his property should his wife predecease him. In any event, “an express and positive devise of an estate in fee followed by a provision capable of construction as cutting down the fee to an inferior or lesser estate will only be so construed ‘when the lesser estate is expressed in positive terms and in language which is unambiguous and incapable of any but the one meaning.’ ” Scanlin v. Peterson, 105 Conn. 308, 313, 135 A.2d 394 (1926), quoting, Hull v. Hull, 101 Conn. 481, 486, 126 A. 699 (1924).

In Hull v. Hull, supra, one paragraph of the will used the words “give, devise and bequeath to my daughters . . . their heirs and assigns forever.” Id., 482. Another paragraph apparently limited the gift by devising the same property to others “[a]t the decease” of the daughters. Id. This court concluded that the second clause applied only in the event of the deaths of the daughters during the lifetime of the testatrix. “ ‘There is [a] rule of construction which has been followed many times by this court, and which is decisive of this case. It is, that when in a will an estate in fee is followed by an apparently inconsistent limitation, the whole should be reconciled by reading the latter disposition as applying exclusively to the event of the prior devisee in fee dying in the lifetime of the testator.’ ” Id., quoting Walsh v. McCutcheon, 71 Conn. 283, 287, 41 A. 813 (1898). The law also “favors the early vesting of estates, prefers the first to the second taker, and looks with disfavor upon defeasance provisions.” Meriden Trust & Safe Deposit Co. v. Squire, 92 Conn. 440, 449, 103 A. 269 (1918).

When these rules are applied to the present case, they favor the interpretation that “the property then remaining” at the death of Mary B. Shaw is referring to her death during the life of the testator. Paragraph “Third,” therefore does not clearly create a life estate. The Appellate Court then was correct in its conclusion that there was no clearly expressed intent in paragraph “Third” which would reduce the estate granted in paragraph “Second” to an estate less than a fee simple absolute. We therefore conclude that, under the will of William Shaw, Mary B. Shaw received a fee simple absolute in the real estate in question.

We affirm the decision of the Appellate Court.

In this opinion the other judges concurred.

       The plaintiff Wilma Dei Cas instituted suit on her own behalf as well as in her capacity as executrix of the estate of her mother. The state tax commissioner was also a defendant, but a judgment by default was rendered against him, and he is not involved in this appeal. Hereinafter, Wilma Dei Cas is referred to as the plaintiff and Marie Mayfield as the defendant.

       In view of our holding, i.e., that paragraph “Second” is a clear bequest of a fee simple and paragraph “Third” is ambiguous, we do not feel that any analysis of paragraph “Fourth” is necessary or helpful. The Appellate Court reasoned that: “Article fourth of the will makes it clear that the testator contemplated that his wife might die before he did, and reinforces the interpretation of article third to mean that the children would take only if their mother did not survive the testator.” Dei Cas v. Mayfield, 3 Conn. App. 106, 111, 485 A.2d 584 (1985).


text:
    Louis Husti et al. v. Zuckerman Property Enterprises, Ltd., et al.
    (12689)
    Peters, C. J., Healey, Dannehy, Callahan and Tamborra, Js.

      Argued February 14
    decision released May 13, 1986

      Alan Neigher, with whom, on the brief, was Judith M. Truitt, for the appellants (defendants).

      John H. Welch, Jr., with whom were Jean Maguire and John Bashar, for the appellees (plaintiffs).
   Peters, C. J.

The issue in this case is whether enforcement of a zoning regulation prohibiting the use of a country club’s property for outdoor concerts or theatrical performances violates rights to free speech protected by the federal and the state constitutions. The named plaintiff, Louis Husti, the acting zoning enforcement officer of the city of Shelton, and the planning and zoning commission of the city of Shelton sought injunctive and other equitable relief to compel the defendants, Zuckerman Property Enterprises, Ltd., and others doing business as the Pinecrest Country Club, to comply with an order of the zoning enforcement officer concerning the use of the defendants’ property. That order, issued in 1979, was upheld in a decision of the Shelton zoning board of appeals. The defendants’ appeal to the Superior Court, Glass, J., was, after a hearing, dismissed and this court denied certification. The trial court, Rottman, J., issued the injunction and the defendants have appealed.

The underlying facts are established by the memorandum of decision filed by Judge Glass in the original appeal. The defendants are the owners of a country club located in a part of Shelton that has been zoned as an R-l residential zone since 1955. In 1970, the management and operation of the country club was taken over by the defendants Robert and Jonathan Zuckerman. They improved the facilities and, in 1975, decided to book outdoor musical events at the club. The concerts were widely advertised, and tickets were sold at the entrance to the club premises. Musical groups performed on a stage with large amplifiers stacked on top or alongside of each other on the stage. The concerts, some of which were held in the early evening and continued into the night, drew thousands of people to the country club. The concerts resulted in considerable traffic congestion and the noise they generated could be heard at great distances.

The Shelton planning and zoning commission concluded, at a special meeting on April 20,1979, that the country club property “is subject to an existing nonconforming use for picnics and outings only, and does not include concerts or other activities and uses listed in Public Acts 1978, No. 78-202; said activities not being permitted by the current zoning and in violation of Section 41.4 of the zoning regulations.” On May 21,1979, the Shelton zoning enforcement officer issued an order to the defendants that: “You are hereby ordered to cease the use of the property for concerts and theatrical performances and to take such action as may be necessary to cancel any scheduled performances or activities which would be in violation of the Zoning Regulations.” The zoning order was upheld by the zoning board of appeals, and by the Superior Court. This court denied certification on September 23,1980. The order therefore definitively establishes that the activities therein described are beyond the scope of any existing nonconforming use.

Despite the order, the defendants continued to offer live entertainment at the country club. The plaintiffs unsuccessfully sought a temporary injunction prohibiting further concerts and theatrical performances, and the defendants unsuccessfully sought an immediate injunction against the plaintiffs in federal court. Both parties then pursued their claims for permanent injunctions in the trial court before Judge Rottman, who temporarily enjoined the defendants while the claims were pending.

In the hearing before Judge Rottman, the plaintiffs sought enforcement of the regulations whose validity had been established by Judge Glass. The trial court ruled that the plaintiffs were entitled to equitable relief to enforce the zoning regulations without a showing of irreparable harm. General Statutes § 8-12; Johnson v. Murzyn, 1 Conn. App. 176, 180, 469 A.2d 1227, cert. denied, 192 Conn. 802, 471 A.2d 244 (1984). That matter is no longer at issue.

The crucial issue before Judge Rottman, and this court, is a constitutional question concerning federal and state constitutional guarantees of free speech. The defendants claim that the right of free speech encompasses live entertainment such as the concerts that they have staged at the country club, and that Shelton’s zoning regulations unconstitutionally infringe on their right of free speech. The trial court upheld the validity of the zoning regulations. It concluded that while the Shelton zoning regulations forbade outdoor live entertainment as a principal use, it permitted such concerts in some zones as an accessory use. It determined that the adoption of the zoning regulations was the result of a substantial concern for adequate land use regulation and that the regulations were not intended to impair free speech in general or the content of a protected form of expression in particular. The court found the zoning regulations to be content-neutral, and a valid “time, place and manner” restriction. It held that the regulations had been narrowly drawn and that they were no more extensive than necessary to serve legitimate zoning interests. On the basis of all of these considerations, the court concluded that “the application of the zoning regulations under the circumstances of this case to the Defendants’ property is not unconstitutional.”

I

The first issue that we must resolve is the defendants’ claim of a violation of their federal first amendment right to free speech. This claim involves an inquiry into the defendants’ own constitutional rights and into the claimed facial invalidity of the Shelton zoning regulations. We do not find it persuasive.

A

In reviewing the defendants’ federal claim, we first note that there is little question that local governments possess the constitutional authority to regulate the use of land. We have held on numerous occasions that zoning restrictions, so far as they reasonably promote public health, safety, and welfare without depriving landowners of all economically viable use of their property, are constitutional even though the effect of the restrictions may be to limit the exercise of private property rights. See, e.g., Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 151, 365 A.2d 387 (1976); St. John’s Roman Catholic Church Corporation v. Darien, 149 Conn. 712, 722-23, 184 A.2d 42 (1962); Poneleit v. Dudas, 141 Conn. 413, 417-18, 106 A.2d 479 (1954); see also Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). When zoning law constricts the realm of permissible expression, however, we employ a heightened level of scrutiny to determine whether the law is valid under the first amendment to the United States constitution. The parties in this case agree that entertainment, including concerts and theatrical productions, is constitutionally protected speech that may be regulated only in certain circumstances and with sufficient justification. See Schad v. Mount Ephraim, 452 U.S. 61, 65, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981); Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648 (1975); Erznoznik v. Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975). We must decide whether constitutional justification exists in this case for Shelton’s exclusion of outdoor entertainment from a residential area.

We begin our inquiry by observing that the Shelton zoning plan does not regulate speech on the basis of its content. The regulations prohibit all outdoor entertainment, regardless of its message, in the residential zone that contains the defendants’ club. Nothing in the record indicates that the city government is using zoning to stifle expression that it deems distasteful. Instead, the zoning restriction represents an attempt by the zoning board to confine the presentation of outdoor concerts to sections of the city that are well suited to accommodate the secondary effects of such activities. See, e.g., Clark v. Community for Creative NonViolence, 468 U.S. 288, 104 S. Ct. 3065, 3069, 82 L. Ed. 2d 221 (1984).

The United States Supreme Court has recently held that a content-neutral zoning regulation that restricts the permissible time, place, and manner of protected speech is constitutional under the first amendment if the regulation “is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.” Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 106 S. Ct. 925, 89 L. Ed. 2d 29 (1986); see also Clark v. Community for Creative Non-Violence, supra; Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 807, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984); Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 649, 654, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981); Friedson v. Westport, 181 Conn. 230, 235-36, 435 A.2d 17 (1980). Our review of the trial court’s findings, and of the underlying record convinces us that both criteria were satisfied in this case.

A city has undeniably important interests in protecting the character of its residential neighborhoods and in promoting the health, safety, and welfare of its citizens. See Belle Terre v. Boraas, 416 U.S. 1, 5-6, 94 S. Ct. 1536, 39 L. Ed. 2d 797 (1974); Berman v. Parker, 348 U.S. 26, 31-33, 75 S. Ct. 98, 99 L. Ed. 27 (1954). As Justice Marshall has observed, “[zoning] may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life.” Belle Terre v. Boraas, supra, 13 (Marshall, J., dissenting). The trial court in this case reasonably concluded that performances at an outdoor amphitheater located in a residential area threatened the quality of life and the safety of the inhabitants of the neighborhood by causing noise, attracting crowds, and creating traffic congestion. These are precisely the kinds of dangers that zoning is meant to combat; see General Statutes § 8-2; and that justify content-neutral regulation of the time, place, and manner of expression. See, e.g., Clark v. Community for Creative Non Violence, supra, 294-97; Members of the City Council of Los Angeles v. Taxpayers for Vincent, supra, 804-809; Kovacs v. Cooper, 336 U.S 77, 86-87, 69 S. Ct. 448, 93 L. Ed. 513 (1949). Consequently, the trial eourt correctly found that the city had imposed restrictions on outdoor entertainment at Pinecrest in furtherance of substantial government interests.

The defendants claim that the presentation of concerts at Pinecrest did not deleteriously affect the surrounding neighborhood because industrial enterprises were located on nearby property that was zoned for commercial purposes. They contend that because the area was already, in effect, a quasi-business district, their use of Pinecrest was appropriate. We reject this argument. Judge Glass has held, in a separate proceeding, that Shelton’s zoning regulations do not permit the defendants to hold concerts at Pinecrest. His findings are conclusive in this proceeding. See Corey v. Avco-Lycoming Division, 163 Conn. 309, 317, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190 (1966); see also Santora, v. Miklus, 199 Conn. 179, 188, 506 A.2d 549 (1986); Department of Health Services v. CHRO, 198 Conn. 479, 487-88, 503 A.2d 1151 (1986); Cologne v. Westfarms Associates, 197 Conn. 141, 147, 496 A.2d 476 (1985). Accordingly, we do not here review the reasonableness of the classification of the neighborhood as residential. Our concern is whether the city had a substantial interest in protecting the residential community from potential adverse consequences of the presentation of outdoor concerts at Pinecrest. There is little question that it did.

The defendants further claim that even if Shelton did have a substantial interest in protecting the community, its means of pursuing that interest, the exclusion of outdoor concerts from the neighborhood, was unnecessarily restrictive. We disagree. Shelton’s regulation serves to remove from residential neighborhoods some likely causes of threats to safety and tranquility. Arguably the city could have chosen to address these dangers specifically by limiting the decibel levels of concerts, limiting audience size, requiring the defendants to police their concerts, and imposing traffic restrictions. In light of the significant possibility that such measures would have been impractical, ineffective, and even counterproductive; see Planning & Zoning Commission v. Zemel Bros., Inc., 29 Conn. Sup. 45, 270 A.2d 562, petition for review dismissed, 159 Conn. 638, 268 A.2d 248 (1970); we cannot say that the exclusion of concerts from a residential district was not sufficiently narrowly tailored to accommodate the city’s substantial interests. See Renton v. Playtime Theatres, Inc., supra, 53-54.

The second prong of the standard articulated in Renton requires that time, place, and manner restrictions on speech provide for reasonable alternative avenues of communication. An examination of the Shelton zoning regulations reveals that indoor entertainment is permitted as a primary use in certain zones, and that outdoor entertainment is permissible as an accessory use of property where outdoor entertainment is “customary with and related to a permitted use.” Although the determination of the scope of accessory uses is, in the first instance, a matter for the Shelton zoning board, the trial court observed, and we agree, that the plain language of the regulations indicates that outdoor entertainment is a proper accessory use of property in certain sections of the city. The defendants claim in a conclusory fashion that the Shelton zoning board would probably not allow outdoor entertainment as an accessory use of any property in the city. The defendants have made no attempt, however, to substantiate their allegations by seeking permission to hold concerts on property whose zoning classification would suppport such events as an accessory use. Consequently, they offer this court no basis on which to reject the trial court’s interpretation of the regulations.

The defendants contend that the alternatives available in Shelton do not provide adequate avenues of communication because their concerts would not be profitable if held indoors or as an accessory use to properly classified land. The United States Supreme Court in Renton responded to a similar claim by noting that “although we have cautioned against the enactment of zoning regulations that have ‘the effect of suppressing, or greatly restricting access to, lawful speech,’ [Young v. American Mini Theatres, 427 U.S. 50, 71 n.35, 96 S. Ct. 2440, 49 L. Ed. 2d 310] (plurality opinion), [reh. denied, 429 U.S. 873, 97 S. Ct. 191, 50 L. Ed. 2d 155 (1976),] we have never suggested that the First Amendment compels the Government to ensure that . . . speech-related businesses . . . will be able to obtain sites at bargain prices.” Renton v. Playtime Theatres, Inc., supra, 54. We cannot conclude on this record that Shelton’s zoning regulations effectively exclude concerts from the town. Since the regulations meet the requirements set out in Renton, they do not, as applied to the defendants, violate the first amendment.

B

The defendants also claim that Shelton’s zoning regulations are, as a matter of federal law, unconstitutionally overbroad. They argue that even if the city may prohibit concerts at Pinecrest, the zoning regulations are so broadly written that they impinge upon the protected speech of others. We do not review this claim because, as the trial court held, the defendants lack standing to pursue it.

Litigants are sometimes allowed to challenge the validity of laws on first amendment grounds where the law would be invalid as applied to others even if the law is constitutional as applied to the litigant. Courts permit overbreadth claims because “persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression.” Gooding v. Wilson, 405 U.S. 518, 521, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); see also New York v. Ferber, 458 U.S. 747, 772, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633-35, 100 S. Ct. 826, 63 L. Ed. 2d 73, reh. denied, 445 U.S. 972, 100 S. Ct. 1668, 64 L. Ed. 2d 250 (1980); Grayned v. Rockford, 408 U.S. 104, 114-21, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972); Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973); Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940).

A party has standing to raise a claim of overbreadth only if “there [is] a realistic danger that the statute will significantly compromise recognized First Amendment protections of parties not before the Court . . . .” Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S. Ct. 2118, 80 L. Ed. 2d 772 (1984); see also Erznoznik v. Jacksonville, 422 U.S. 205, 216, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975); Broadrick v. Oklahoma, supra, 613-15. The defendants in this case argue that the Shelton zoning regulations jeopardize access to outdoor entertainment throughout Shelton and implicate protected activities such as political speech. These arguments cannot be sustained without a showing of a foundation for the “realistic danger” that the defendants envisage. The record does not support a claim that all outdoor entertainment is barred everywhere in the city of Shelton. The defendants’ contention that the language of the zoning regulation is broad enough to exclude outdoor political speeches as well as concerts may well be true but does not strengthen their position. Regulations that are content-neutral in imposing time, place, and manner restrictions are not unconstitutional under the circumstances of this case. Renton v. Playtime Theatres, Inc., supra, 52. Both of these claims are in substance no different from the claim that the defendants raise on their own behalf and therefore do not create standing to mount an overbreadth challenge. See Members of the City Council of Los Angeles v. Taxpayers for Vincent, supra, 802. In the absence of a demonstrated danger that the regulation will significantly impinge upon the first amendment rights of those not before the court, the defendants have no standing to press a claim of overbreadth.

II

The defendants also contend that Shelton’s zoning regulations violate the Connecticut constitution. They argue that even if the United States constitution does not guarantee their right to hold rock concerts in residential areas, the state constitution does. We need not address the merits of this claim because the defendants lack standing to demand relief under the state constitution.

Article first, §§ 4 and 5 of the Connecticut constitution set out state protections of free speech. While it is well settled that provisions of our state constitution may be construed to provide greater protection of rights than the United States constitution affords; see Cologne v. Westfarms Associates, 192 Conn. 48, 56-58, 469 A.2d 1201 (1984); Horton v. Meskill, 172 Conn. 615, 641-42, 376 A.2d 359 (1977); it is equally well established that a litigant may challenge the validity of a statute or ordinance under the Connecticut constitution only as it has been applied to him. He may not claim that the provision is invalid because it impermissibly impinges upon the constitutional rights of others. Southern Connecticut Gas Co. v. Housing Authority of New Haven, 191 Conn. 514, 522, 468 A.2d 574 (1983); General Electric Supply Co. v. Southern New England Telephone Co., 185 Conn. 583, 593, 441 A.2d 581 (1981); Burritt Mutual Savings Bank v. Tucker, 183 Conn. 369, 379, 439 A.2d 396 (1981); Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn 483, 494-95,400 A.2d 726 (1978); Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 171-72, 363 A.2d 22 (1975); see also State v. Sinchuk, 96 Conn. 605, 615, 115 A.2d 33 (1921).

Our inquiry is therefore limited to a determination of whether the application of Shelton’s zoning regulations to Pinecrest violated article first, §§ 4 and 5. In order to sustain such an attack under the Connecticut constitution, the defendants must establish beyond a reasonable doubt that the regulations deny them their rights guaranteed by article first, §§ 4 and 5. See, e.g., Weil v. Miller, 185 Conn. 495, 501, 441 A.2d 142 (1981); Gentile v. Altermatt, 169 Conn. 267, 307, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Roundhouse Construction Corporations. Telesco Masons Supplies Co., 168 Conn. 371, 385, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976); Lublin v. Brown, 168 Conn. 212, 219-20, 362 A.2d 769 (1975); Kellems v. Brown, 163 Conn. 478, 486, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); Adams v. Rubinow, 157 Conn. 150, 152-53, 251 A.2d 49 (1968); Hardware Mutual Casualty Co. v. Premo, 153 Conn. 465, 471, 217 A.2d 698 (1966).

In this case, the defendants have failed to show a denial of their own constitutional rights because they have not exhausted the administrative remedies available to them under the Shelton zoning plan. There is nothing in the record to indicate that the defendants have attempted to gain permission to hold concerts as an accessory use to the Pinecrest property or to any other property in town. The defendants have also failed to seek a variance that would allow them to present outdoor entertainment. The fact that the defendants have raised state constitutional issues does not give them the right to bypass the zoning procedures of the city of Shelton. See Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 446, 418 A.2d 82 (1979); West Hartford Methodist Church v. Zoning Board of Appeals, 143 Conn. 263, 268, 121 A.2d 640 (1956). Until the defendants have exhausted these procedures, they cannot claim that the city has denied their right of free speech under the state constitution. We therefore do not reach the merits of their state claim.

There is no error.

In this opinion the other judges concurred.

       The other named defendants were Robert Zuckerman, Jonathan Zuckerman, Shelton Yacht and Cabana Club, Inc., Lascal, Inc., and First River Road Corporation.

       “[General Statutes] Sec. 8-2. regulations. The zoning commission of each city, town or borough is authorized to regulate, within the limits of such municipality, the height, number of stories and size of buildings and other structures; the percentage of the area of the lot that may be occupied; the size of yards, courts and other open spaces; the density of population and the location and use of buildings, structures and land for trade, industry, residence or other purposes, and the height, size and location of advertising signs and billboards. Such zoning commission may divide the municipality into districts of such number, shape and area as may be best suited to carry out the purposes of this chapter; and, within such districts, it may regulate the erection, construction, reconstruction, alteration or use of buildings or structures and the use of land. All such regulations shall be uniform for each class or kind of buildings, structures or use of land throughout each district, but the regulations in one district may differ from those in another district, and may provide that certain classes or kinds of buildings, structures or use of land are permitted only after obtaining a special permit or special exception from a zoning commission, planning commission, combined planning and zoning commission or zoning board of appeals, whichever commission or board the regulations may, notwithstanding any special act to the contrary, designate, subject to standards set forth in the regulations and to conditions necessary to protect the public health, safety, convenience and property values. Such regulations shall be made in accordance with a comprehensive plan and shall be designed to lessen congestion in the streets; to secure safety from fire, panic, flood and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population and to facilitate the adequate provision for transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration as to the character of the district and its peculiar suitability for particular uses and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality. Such regulations shall also encourage the development of housing opportunities for all citizens of the municipality consistent with soil types, terrain and infrastructure capacity. Zoning regulations may be made with reasonable consideration for the protection of historic factors and for the protection of existing and potential public surface and ground drinking water supplies and may provide that proper provision be made for sedimentation control, and the control of erosion caused by wind or water. Such regulations may also encourage energy-efficient patterns of development, the use of solar and other renewable forms of energy, and energy conservation. The regulations may also provide for incentives for developers who use passive solar energy techniques, as defined in subsection (b) of section 8-25, in planning a residential subdivision development. The incentives may include, but not be limited to, cluster development, higher density development and performance standards for roads, sidewalks and underground facilities in the subdivision. Such regulations shall not prohibit the continuance of any nonconforming use, building or structure existing at the time of the adoption of such regulations. Any city, town or borough which adopts the provisions of this chapter may, by vote of its legislative body, exempt municipal property from the regulations prescribed by the zoning commission of such city, town or borough; but unless it is so voted municipal property shall be subject to such regulations.”

       For example, the Shelton zoning regulations permit, in one or more zones, theaters, assembly halls, hotels, restaurants, schools, colleges, membership clubs, recreation facilities, lodges, and community houses. The zoning board could reasonably classify live entertainment as an “accessory us[e] customary with and incidental to” any of these permitted uses. See Shelton Zoning Regulations Schedule A; see also Beit Havurah v. Zoning Board of Appeals, 177 Conn. 440, 447, 418 A.2d 82 (1979).

       The defendants also argue that Shelton’s application of its zoning regulations violates the equal protection clause of the fourteenth amendment to the United States constitution. Citing a number of instances in which the city has permitted picnics at Pinecrest and outdoor entertainment in other sections of town, they claim that the city has discriminatorily enforced its zoning laws to ban rock concerts at Pinecrest. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).
      This contention finds no support in the record. The city permitted picnics at Pinecrest because, as Judge Glass held, Pinecrest’s nonconforming use includes picnics. The other outdoor events referred to by the defendants were presented in sections of town that were not classified as residential districts. These events serve not as proof of a denial of equal protection, but as evidence that the zoning plan does provide opportunities to present outdoor entertainment in the city of Shelton.

       The defendants also claim that the Shelton zoning regulations and the zoning board’s enforcement order are impermissibly vague in excluding outdoor entertainment from residential districts. Judge Glass found, in the defendants’ original appeal from the order of the zoning board of appeals, that the regulations and the order were not vague. We denied the defendants’ petition for certification of their appeal from this judgment. The defendants cannot now collaterally challenge Judge Glass’s findings. See Corey v. Avco-Lycoming Division, 163 Conn. 309, 307 A.2d 155 (1972), cert. denied, 409 U.S. 1116, 93 S. Ct. 903, 34 L. Ed. 2d 699 (1973); Brockett v. Jensen, 154 Conn. 328, 337, 225 A.2d 190 (1966).

       The constitution of Connecticut, article first, § 4 provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.”

         The constitution of Connecticut, article first, § 5 provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.”