author: Peters, C. J.

text:
    Frank P. Gionfriddo, Administrator (Estate of Kim Marie Gionfriddo), et al. v. Gartenhaus Cafe
    (13503)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued March 7
    decision released May 2, 1989

      Edward F. Hennessey, with whom was Kathleen C. Stone, for the appellant (plaintiff).

      Philip J. O’Connor and Henry C. Ide, with whom, on the brief, was James G. Kelly, for the appellee (defendant).
   Peters, C. J.

The dispositive issue in this appeal, after our grant of certification to appeal from the judgment of the Appellate Court, is whether the plaintiff may recover damages arising out of injuries for which he has already recovered from third party defendants not in privity with the instant defendant. The plaintiff, Frank P. Gionfriddo, on his own behalf and as administrator of the estate of his daughter, the decedent Kim Marie Gionfriddo, brought suit against the defendant, Gartenhaus Cafe, for wrongful death and other damages. After denying the defendant’s summary judgment motion, the trial court tried the case to a jury, which returned a defendant’s verdict. The plaintiff appealed to the Appellate Court, which upheld the defendant’s verdict, but found error in the trial court’s failure to grant summary judgment for the defendant. Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 546 A.2d 284 (1988). Upon the plaintiffs appeal, we granted certification limited to the following issue: “Is the plaintiff collaterally estopped from seeking an additional recovery from a defendant by virtue of the plaintiff’s judgment against third parties not in privity with the defendant?” We now affirm.

The relevant facts as reported in the Appellate Court’s opinion and supported by the record are as follows. The decedent died from injuries sustained in a collision occurring when a vehicle driven by Michael Gilliam crossed into her lane of traffic and struck her vehicle. Gilliam, admittedly intoxicated at the time of the accident, had arrived at the defendant Gartenhaus Cafe at approximately 6:30 p.m. on the day of the accident and consumed “probably ten [or] twelve” alcoholic drinks before leaving between 8:00 and 8:30 p.m. Id., 393.

The plaintiff sued Gilliam and the lessor of the vehicle driven by him for wrongful death and other compensatory damages. After a jury trial, the plaintiff received compensatory, exemplary and treble damages in the amount of $1,187,763. We affirmed that judgment and those damages in Gionfriddo v. Avis Rent A Car System, Inc., 192 Conn. 280, 472 A.2d 306 (1984) (Gionfriddo I), and the defendants therein have satisfied that judgment in full.

Subsequently the plaintiff commenced this action alleging three theories of liability against the defendant Gartenhaus Cafe: (1) selling alcohol to an intoxicated person in violation of General Statutes § 30-102; (2) negligence; and (3) creating a public nuisance on the highway. The trial court, Wright, J., granted the defendant’s motion to strike the negligence and nuisance counts from the plaintiff’s complaint, and thereafter rendered judgment in its favor on those two counts. The plaintiff then amended his complaint to add a count alleging liability for wanton and reckless misconduct pursuant to Kowal v. Hofher, 181 Conn. 355, 362, 436 A.2d 1 (1980). Thereafter the defendant moved for summary judgment on the two remaining counts, contending that satisfaction of the judgment rendered in Gionfriddo I for the same injuries claimed herein precluded the plaintiffs recovery in this case. The trial court, Stoughton, J., denied the motion. After a jury trial on both counts resulted in a defendant’s verdict, the trial court, Corrigan, J., rendered judgment in the defendant’s favor.

The plaintiff appealed both trial court judgments to the Appellate Court, raising six claims of error. The defendant responded that even if the plaintiff’s claims had merit, the court should affirm the judgments because the plaintiff had. already received satisfaction for his injuries by the damages awarded and recovered in Gionfriddo I.

The Appellate Court agreed that the adjudication of damages in Gionfriddo I and the satisfaction of that judgment barred the plaintiff from bringing this action. It therefore held that the judgments rendered for the defendant were without error, although the trial court had erred in denying the defendant’s summary judgment motion. Gionfriddo v. Gartenhaus Cafe, supra, 406. In reaching its conclusion, the Appellate Court reasoned that the defendants in Gionfriddo I and in the instant case were joint tortfeasors, that the plaintiff had received just damages from one or more of the joint tortfeasors and that principles of defensive collateral estoppel applied to prevent the plaintiff from reaping double damages. Id., 398-406. This appeal ensued.

The plaintiff argues that Connecticut has never sanctioned the use of defensive collateral estoppel, that it should not now adopt such a rule and that the doctrine is especially inappropriate in this case. The defendant, on the other hand, claims that we should recognize the use of defensive collateral estoppel in this jurisdiction and in this case, but argues that this case does not necessitate reaching that issue because the plaintiff has been fully and justly compensated by satisfaction of his judgment in Gionfriddo I.

We agree with the defendant that in deciding this case we need not reach the issue of whether this jurisdiction continues to adhere to the doctrine of mutuality of estoppel or whether we should approve of the use of defensive collateral estoppel in this or any case. Rather, we dispose of this case by paying heed to the simple and time-honored maxim that “ ‘[a] plaintiff may be compensated only once for his just damages for the same injury.’ ” Virgo v. Lyons, 209 Conn. 497, 509, 551 A.2d 1243 (1988), quoting Gionfriddo v. Gartenhaus Cafe, supra, 406; see also Peck v. Jacquemin, 196 Conn. 53, 70 n.19, 491 A.2d 1043 (1985) (“an injured party is entitled to full recovery only once for the harm suffered”).

Plaintiffs are not foreclosed from suing multiple defendants, either jointly or separately, for injuries for which each is liable, nor are they foreclosed from obtaining multiple judgments against joint tortfeasors. Practice Book § 97; 2 Restatement (Second), Judgments (1982) § 49. This rule is based on the sound policy that seeks to ensure that parties will recover for their damages. See 2 Restatement (Second), Judgments (1982) § 49, comment b; W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 48. The possible rendition of multiple judgments does not, however, defeat the proposition that a litigant may recover just damages only once. 2 Restatement (Second), Judgments (1982) § 50 (2); 4 Restatement (Second), Torts (1979) § 885 (3). “Double recovery is foreclosed by the rule that only one satisfaction may be obtained for a loss that is the subject of two or more judgments.” 2 Restatement (Second), Judgments (1982) § 49, comment a.

We have held to this principle since at least 1863. In Ayer v. Ashmead, 31 Conn. 447 (1863), the plaintiff brought suit against two defendants for trespass. The plaintiff settled with one defendant for damages caused by the trespass, but pursued the action against the other. The remaining defendant defended and prevailed on the ground that the settlement with the other defendant had satisfied the plaintiff’s claimed damages. We stated: “It is, as we suppose, settled law that a release, discharge or satisfaction of one or more of several joint trespassers is a discharge of them all, in the same manner that a discharge of one of several joint debtors, or a payment and satisfaction of the joint debt by one, is a satisfaction as to all, since a party injured by a trespass committed by several can have but one satisfaction for his injury, no more than one who has a debt against several can be entitled to be more than once paid.” Id., 452. While this jurisdiction and others no longer follow the rule that a release of one defendant releases all joint defendants; see General Statutes § 52-216a;* ****** Peck v. Jacqwemin, supra, 67-68; 2 Restatement (Second), Judgments (1982) § 50, comment a; 4 Restatement (Second), Torts (1979) § 885 (1); it is still the law that satisfaction of a judgment as to one tortfeasor is satisfaction as to all. Peck v. Jacquemin, supra, 70 n.19 (“nothing we say today in any way changes the time-honored rule that an injured party is entitled to full recovery only once for the harm suffered”).

We reiterated this rule in Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385 (1932). In that case the plaintiff brought suit for negligence and breach of warranty against the seller and the manufacturer of a can of beef containing a piece of tin that the plaintiffs decedent swallowed. The plaintiff sued and obtained judgments in disparate amounts against the seller, for pain and suffering and medical bills, and against the manufacturer, for the same items of damage and for the decedent’s death. We held that satisfaction of the judgment against the seller only reduced, but did not preclude, recovery against the manufacturer because the judgments were for different injuries. We repeated and did not violate or impair, however, “[t]he general rule . . . that there can be but one satisfaction of damages, and where judgments are rendered against different persons for the same cause of action, payment of one is a satisfaction of all.” Id., 257.

Most recently we adhered to this doctrine in Virgo v. Lyons, supra, a case that differs only procedurally from the instant case. In Virgo, the plaintiff sought recovery for personal injuries and medical expenses caused by an assault and battery upon him by police officers. He brought a civil rights action in federal district court under 42 U.S.C. § 1983, and appended certain state law claims. The District Court declined to hear the state claims and tried only the civil rights claim to a jury. The jury awarded the plaintiff compensatory damages for his personal injuries and medical expenses, and the court rendered judgment against only one of the officers. Id., 498-99.

The plaintiff then brought suit in the Superior Court seeking recovery for the same injuries and expenses under state law principles (negligence, assault and battery) that the District Court had declined to consider. The trial court granted the defendants’ summary judgment motion on the grounds that the plaintiff had already recovered for his claimed damages and could not seek double recovery. Id., 500. We found no error in the trial court’s ruling because, although the plaintiff had not had the opportunity to pursue his state law claims, and “[a]lthough the plaintiff may be dissatisfied with the damages he received in the federal court action, the fact remains that he has already litigated the issue of damages and he cannot relitigate that issue.” Id., 509.

It is not questioned that the damages the plaintiff has claimed in this case were identical to those claimed, awarded and recovered in Gionfriddo I. There is also no doubt that the plaintiff recovered “just damages” in Gionfriddo I. He never filed any post-verdict motions for an additur or to set aside the verdict, nor did he otherwise claim that the verdict for compensatory damages was insufficient. We therefore conclude that the Appellate Court correctly determined that the trial court erred in not granting the defendant’s summary judgment motion. As the verdict rendered favored the defendant, however, the Appellate Court also correctly found no error in the trial court’s judgment for the defendant.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 30-102, also known as the dram shop act, provides in pertinent part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages . . . . ”

       In Kowal v. Hofher, 181 Conn. 355, 436 A.2d 1 (1980), we held that individuals may be held liable for injuries resulting from their reckless and wanton conduct in providing alcoholic beverages to others.

       Practice Book § 97 provides: “Where the plaintiff may at his option join several persons as defendants, or sue them separately, judgment without satisfaction against one shall not bar a suit against another.”

       The Restatement (Second) of Judgments § 49 provides: “A judgment against one person liable for a loss does not terminate a claim that the injured party may have against another person who may be liable therefor.”

      The Restatement (Second) of Judgments § 50 provides in pertinent part: “When a judgment has been rendered against one of several persons each of whom is liable for a loss claimed in the action on which the judgment is based ... (2) Any consideration received by the judgment creditor in payment of the judgment debtor’s obligation discharges, to the extent of the amount of value received, the liability to the judgment creditor of all other persons liable for the loss.” Thus, “[a] payment by one person liable for a loss reduces pro tanto the amount that the injured person is entitled to receive from other persons liable for the loss.” Id., comment c. “The adjudication of the amount of the loss also has the effect of establishing the limit of the injured party’s entitlement to redress, whoever the obligor may be. This is because the determination of the amount of the loss resulting from actual litigation of the issue of damages results in the injured person’s being precluded from relitigating the damages question. See § 29. Therefore, when a judgment is based on actual litigation of the measure of a loss, and the judgment is thereafter paid in full, the injured party has no enforcible claim against any other obligor who is responsible for the same loss.” Id., comment d.

       The Restatement (Second) of Torts § 885 (3) provides: “A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time, of payment or the payment is made before or after judgment.” Therefore, “[i]f the payment is made as full satisfaction for a specified item of damage, the claim against the others is terminated with respect to that item.” Id., comment e; see also id., § 886, comment b (“a payment in full of the judgment has the effect of satisfying in full the injured party’s claim against any of the tortfeasors and there is no longer an enforceable claim”); W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 48, p. 331 (“[wjhen payment of the judgment in full is made by the judgment debtor, there is no doubt that the plaintiff is barred from a further action against another who is liable for the same damages, or from enforcement of another judgment against the other”).

       The plaintiff complains that Pierce v. Albanese, 144 Conn. 241, 261,129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957), mandated that he bring separate actions against the driver and the purveyor of liquor, and therefore the application of the satisfaction of judgment doctrine would effectively preclude him from litigating the defendant’s liability. The usual rule would not prevent a plaintiff from obtaining multiple judgments against separate defendants even in separate lawsuits. Practice Book § 97; 2 Restatement (Second), Judgments § 49. We need not address in this case the question of whether the rule of Pierce v. Albanese would present problems of issue preclusion in separate suits. Satisfaction of the one judgment foreclosed this plaintiff from further litigating his claim for the same injuries. See generally W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 48, pp. 330-31.

       General Statutes § 52-216a provides in pertinent part: “An agreement with any tortfeasor not to bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury.”
      The plaintiff urges us not to distinguish between releases and settlements on the one hand and satisfied judgments on the other. The legislature, however, has made the distinction for us. Section 52-216a does not limit the effect of satisfied judgments on subsequent lawsuits and we decline to construe it to have such effect. Furthermore, releases and settlements differ genuinely from satisfied judgments. The former represent a surrender of a cause of action, perhaps for a consideration less than the injury received. The latter, on the other hand, represent full compensation for injuries. See W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 49, p. 332. Because the parties in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 354-55, 493 A.2d 184 (1985), did not raise § 52-216a as an issue nor dispute that the plaintiff was entitled to only one recovery, we did not decide there, and we decline to decide here, whether stipulated judgments fall within the former or the latter category.

       This rule applies equally to the law of contracts. See Dwy v. Connecticut Co., 89 Conn. 74, 80, 92 A. 883 (1915); see also 2 Restatement (Second), Contracts (1982) § 291; 2 Restatement (Second), Judgments (1982) § 49, comment b.

       We overruled Burkhardt v. Armour & Co., 115 Conn. 249,161 A.385 (1932), on other grounds in Porpora v. New Haven, 122 Conn. 80, 95-96, 187 A. 668 (1936).

       The plaintiff argues that the application of defensive collateral estoppel in this case would violate article first, § 10 of the Connecticut constitution. Although we do not reach the defensive collateral estoppel issue in this case, the plaintiffs argument fails on its merits in cases such as this in which the plaintiff has received full satisfaction for claimed injuries. Article first, § 10 provides in pertinent part: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law____” The courts have been “open” to the plaintiff “for an injury done to him” and he has had “remedy by due course of law.” Article first, § 10 does not ensure that a plaintiff may obtain satisfaction of multiple judgments for the same injury.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Robert J. Stankiewicz et al. v. Zoning Board of Appeals of the Town of Montville et al.
    (13521)
    Peters, C. J., Callahan, Glass, Covello and Hull, Js.
    Argued April 4
    decision released May 2, 1989

      Stanley Maxim Lucas, for the appellants (plaintiffs).

      James J. Devine, for the appellee (named defendant).

      Harry B. Heller, for the appellees (defendant Joseph Fisher et al.)
   Per Curiam.

In this zoning appeal, the sole issue is the extent of the Superior Court’s authority to search the record to supplement the reasons given by a local zoning board to explain its decision to grant a variance. The trial court dismissed the appeal of the plaintiffs, Robert Stankiewicz and Cheryl Stankiewicz, from the decision of the defendant zoning board of appeals of the town of Montville (board). The board had granted variances from local bulk area regulations and setback requirements to the defendants Joseph Fisher and Marjorie Fisher to enable them to build a garage on their lot on Lake Drive in Montville. The trial court agreed with the plaintiffs’ claim that there was no basis in the record to sustain the board’s conclusion that the Fishers’ hardship was unique. The court nonetheless dismissed the plaintiffs’ appeal because its own examination of the record led it to conclude that application of the zoning regulations to the Fishers’ lot was confiscatory and that granting variances to the Fishers would not interfere with the local comprehensive zoning plan.

On the plaintiffs’ further appeal to the Appellate Court, the judgment of the trial court was affirmed. Stankiewicz v. Zoning Board of Appeals, 15 Conn. App. 729, 546 A.2d 919 (1988). We granted the plaintiffs’ petition for certification to appeal, limited to the following issue: “Did the Appellate Court err in concluding that if a zoning board gives inadequate reasons for granting a variance, as opposed to giving no reasons whatever, the trial court may search the record to determine whether basis exists for the action taken?” (Emphasis in original.) Stankiewicz v. Zoning Board of Appeals, 209 Conn. 815, 550 A.2d 1084 (1988).

After examining the record on appeal, and after considering the briefs and arguments of the parties, we conclude that the judgment of the Appellate Court must be affirmed. The issue on which we granted certification was properly resolved in the thoughtful and comprehensive opinion of the Appellate Court. It would serve no useful purpose for us to repeat the discussion therein contained.

The judgment of the Appellate Court is affirmed.


author: Hull, J.

text:
    Joseph J. Cardoza, Jr., et al. v. Zoning Commission of the City of Bridgeport et al.
    (13500)
    Peters, C. J., Shea, Glass, Covello and Hull, Js.
    Argued February 7
    decision released May 2, 1989

      J. Roger Shull, for the appellants (plaintiffs).

      Gregory M. Conte, with whom, on the brief, was Barbara Brazzel-Massaro, for the appellees (defendants).
   Hull, J.

The dispositive issue in this zoning appeal is whether the plaintiffs’ failure to allege newspaper publication of the notice of the zoning decision from which they appealed deprived the trial court of subject matter jurisdiction. We conclude that the trial court erred in finding that the omission of such an allegation was a jurisdictional defect requiring the dismissal of the plaintiffs’ appeal.

The background of this case is not in dispute. On December 9, 1987, the plaintiffs, Joseph J. Cardoza, Jr., and Lina Cardoza, filed an appeal from the granting of a zone change by the defendant zoning commission of the city of Bridgeport on November 30, 1987. The plaintiffs claimed aggrievement on the basis of their ownership of property within 100 feet of the boundary line of the subject property. Although notice of the zoning commission’s decision was published in the Bridgeport Post on December 4, 1987, the plaintiffs did not allege this fact in their complaint. The defendant Gus Associates, a contract purchaser from the owner defendants, Ramon Feliciano and Iraida Feliciano, moved to dismiss the plaintiffs’ appeal on the ground, among others, of lack of subject matter jurisdiction. The defendant Gus Associates relied on the provision in General Statutes § 8-8 (a) that a person aggrieved by a decision of a zoning board “may, within fifteen days from the date when notice of such decision was published in a newspaper . . . take an appeal to the superior court . ” Gus Associates argued that publication of the notice of a decision is a condition precedent to the filing of an appeal, and that the plaintiffs’ failure to allege the fact and date of publication is violative of the strict requirements of § 8-8 (a), thus justifying a dismissal.

The court, in its memorandum of decision on the motion to dismiss, acted on the first ground raised, that the appeal was brought prematurely under the notice of publication provisions of § 8-8 (a). The court stated: “The plaintiffs’ complaint fails to allege any publication of the Commission’s action. Publication is one step required by Sec. 8-3 (d), C.G.S. to make the change of zone effective. Hyatt v. Zoning Boards of Appeals, 163 Conn. 379, [386-88, 311 A.2d 77 (1972)]. If the decision of the Commission is not effective until published, Akin v. Norwalk, 163 Conn. 68, [301 A.2d 258 (1972),] in a timely fashion as provided by the statute, then no one is aggrieved until the statute is complied with as to publication. The court concludes that the time to appeal commences with publication. Since the plaintiffs fail to allege publication of the November 30,1987 zone change action, they have not alleged a basis for aggrievement which would be founded on timely publication.” The court then granted the defendant Gus Associates’ motion to dismiss, which was the basis for the subsequent rendering of a judgment in favor of all of the defendants. The plaintiffs’ appeal to the Appellate Court has been transferred to this court pursuant to Practice Book § 4023.

The authority cited by the court and the defendants is not in dispute. Failure to publish a notice of decision within the applicable time constraints renders the decision of a zoning commission void. See Hyatt v. Zoning Board of Appeals, supra, 386-87 (appeals from decisions of zoning boards of appeal under General Statutes §§ 8-7 and 8-8); Akin v. Norwalk, supra, 73-74 (the time limitation imposed by General Statutes § 8-28 for the publication of decisions of a planning commission). The fifteen day appeal period commences on the date of publication. General Statutes § 8-8 (a); Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, 195 Conn. 276, 280-81, 487 A.2d 559 (1985). “ ‘A statutory right to appeal may be taken advantage of only by strict compliance with the statutory provisions by which it is created.’ ” Bridgeport Bowl-O-Rama, Inc. v. Zoning Board of Appeals, supra, 283, quoting Farricielli v. Personnel Appeal Board, 186 Conn. 198,201, 440 A.2d 286 (1982). If the appeal period has expired when an appeal is filed the trial court lacks jurisdiction over the appeal. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 593, 409 A.2d 1029 (1979) (failure to prosecute an appeal within the time period prescribed by General Statutes § 8-28).

The cases cited, however, have no bearing on the narrow issue before this court. We note the unusual posture of the motion to dismiss in this case. The defendants do not seek a decision that the change of zone was ineffective because of improper notice of publication of the notice of the decision. They are the beneficiaries of the zone change. Nor do they claim a lack of publication of the notice of the decision. Rather, relying on the long-standing rule requiring strict compliance with the procedural requirements of an administrative appeal, they seek to elevate a claimed defect in the complaint—a technical defect at best— into a jurisdictional bar to the appeal. The defendants, however, cite no authority for the claim that failure to allege the fact and date of publication is a jurisdictional defect.

We turn first to our Practice Book. Form 204.8 is entitled “Appeal from Zoning Board of Appeals.” It provides in pertinent part:

“1. (Name and residence of applicant) applied to the zoning board of appeals of the town of for (state nature of application and relief sought)

“2. The board granted (or denied) the application and notice of such decision was duly published in a newspaper.

“3. The plaintiff is aggrieved by the decision of the board (or owns land within 100 feet of the land involved in the decision).”

Paragraph two of the form alleges that notice of the decision was “duly” published, but the absence of the date of publication may be considered to be substantially the same defect as that alleged in this case. The plaintiffs also point out three other sections of the General Statutes containing requirements that must be met before certain actions become “effective”: (1) General Statutes § 8-3 (d) (filing of a copy of zone change in the office of the town clerk); (2) General Statutes § 8-3 (a) (notice of a public hearing on the establishment or change of a zoning regulation or boundary); and (3) General Statutes § 8-7 (granting of an exception or variance by zoning board of appeals effective upon the filing a copy thereof in the office of the town clerk).

In Huhta v. Zoning Board of Appeals, 151 Conn. 694, 698-99, 202 A.2d 139 (1964), we emphasized the importance of a factual basis for a jurisdictional attack on a zoning appeal: “The defendants have attempted to raise in this court the question of the jurisdiction of the Court of Common Pleas to entertain the plaintiffs’ appeal, asserting that, since it appears in the record that the decision of the board of appeals was made on July 25, 1961, and the plaintiffs’ appeal is dated August 10, 1961, the appeal was not timely. It is true that whenever the absence of jurisdiction is brought to the notice of the court, cognizance of the fact must be taken and the matter determined. Bardes v. Zon ing Board, 141 Conn. 317, 318, 106 A.2d 160 [1954]. In this instance, however, the record is barren of facts essential to support the defendants’ claim. The time within which the plaintiffs could appeal from the action of the board of appeals was governed by § 8-7 of the General Statutes. Leonard v. Zoning Board of Appeals, 151 Conn. 646, 648, 201 A.2d 466 [1964]; Aurora v. Zoning Board of Appeals, 151 Conn. 378, 380,198 A.2d 60 [1964]. The record does not disclose whether the decision was filed in the office of the clerk in Stamford or notice of the filing was published in a newspaper having a substantial circulation in Stamford. In the absence of these facts in the record, there is no basis upon which this court can determine the validity of the defendants’ jurisdictional attack.”

In Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, 201 Conn. 350, 514 A.2d 749 (1986), the defendant commission claimed that the Superior Court lacked jurisdiction over the appeal from the commission’s decision. The commission argued that the plaintiff improperly commenced its appeal by using Practice Book Form 103.1 (JD-CV-1), a writ of summons, which was prohibited by Practice Book § 49. Id., 354-55. We noted the necessity for strict compliance with the statutory provisions authorizing appeals from administrative agencies, but determined that “[t]he use of an improper form to commence an appeal . . . presents a different situation.” Id., 356. We held that “[a]s long as it contains a proper citation, signed by a competent authority, its use does not call into question the jurisdiction of the Superior Court to entertain the appeal. See General Statutes § 4-183 (b). Practice Book Form 204.7 merely establishes a method of service upon the administrative agency in a manner different from other civil actions, to wit, by registered or certified mail. See Public Acts 1979, No. 79-163. If the form . . . clearly apprises all concerned that a lawsuit is being instituted, and contains notice of the return date, and the requirement for filing an appearance, and also directs a competent authority to summon the defendant, then the policy of giving notice to the defendant of the nature of the proceedings has been served. Cf. Village Creek Homeowners Assn. v. Public Utilities Commission, [148 Conn. 336, 338-40,170 A.2d 732 (1961)]. Absent an affirmative showing of prejudice by the defendant; see General Statutes § 52-123; Village Creek Homeowners Assn. v. Public Utilities Commission, supra, 340; United States Envelope Co. v. Vernon, 72 Conn. 329, 44 A. 478 (1899); we conclude that the mistaken use of Form 103.1 (JD-CV-1) does not warrant the dismissal of an administrative appeal.” Chestnut Realty, Inc. v. Commission on Human Rights & Opportunities, supra, 356-57.

Similarly, we conclude in this case that the failure to allege the fact and date of publication in the plaintiffs’ complaint is not a jurisdictional defect requiring dismissal of the appeal.

There is error, the judgment of dismissal is set aside and the case is remanded to the Superior Court for further proceedings.

In this opinion the other justices concurred.

       The plaintiffs also cited a second issue concerning two claimed procedural irregularities in the defendant Gus Associates’ motion to dismiss. In view of our disposition of the main issue in the case we do not reach these claimed procedural defects.

       After judgment the plaintiffs filed a motion for articulation inquiring whether the court dismissed the appeal because it was commenced prior to newspaper publication of the decision appealed from or because the plaintiffs failed to plead newspaper publication. A copy of the publication of notice referred to above was attached to the motion. The court denied further articulation.

       Although neither the memorandum of decision nor the judgment stated that the appeal was dismissed for lack of subject matter jurisdiction, the court acted upon a motion based on such a claim and the parties agree that this was the basis of the dismissal of the appeal.

       On October 11,1988, more than two months after this appeal was filed, the defendant Gus Associates moved to dismiss the appeal for lack of subject matter jurisdiction. Gus Associates claimed that under General Statutes § 8-8 (d), appeals from rulings of the trial court on motions to dismiss must be taken within seven days of the entry of the trial court’s order. Since the plaintiffs failed to file their appeal within seven days of the trial court’s order, Gus Associates argued that the plaintiffs’ appeal was jurisdiction-ally defective. We denied the motion to dismiss without prejudice to renewal at the time of full hearing.
      We need not decide under the facts of this case whether the plaintiffs’ appeal was timely filed under § 8-8. In Giordano Construction Co. v. Ross, 182 Conn. 577, 579, 438 A.2d 772 (1980), we held that “[t]he fact that the appeal statute specifies a time period in which to take an appeal does not mean that an appeal taken beyond the specified time is void. The untimely filing of an appeal is merely an irregularity and not a jurisdictional defect.” Since the failure to comply with a statutory time limit for filing an appeal constitutes an irregularity in the filing of an appeal rather than a jurisdictional defect, Gus Associates’ motion to dismiss should have been filed within ten days of the filing of the appeal. Practice Book § 4056; LaReau v. Reincke, 158 Conn. 486, 495, 264 A.2d 576 (1969). Having failed to file its motion to dismiss within ten days after the appeal was filed, Gus Associates is deemed to have waived any claim that the appeal is defective as untimely filed. Its motion to dismiss, therefore, is denied.

       In the light of our disposition of this case, a motion to strike (Practice Book § 151) is the appropriate motion to attack the plaintiffs’ failure to allege the fact and date of publication in their complaint. If granted, a substitute pleading may be filed pursuant to Practice Book § 157.


author: Shea, J.

text:
    Primerica v. Planning and Zoning Commission of the Town of Greenwich
    (13543)
    (13544)
    Peters, C. J., Healey, Shea, Glass and Santaniello, Js.

      Argued January 11
    decision released May 2, 1989

      W. Patrick Ryan, with whom were Michael T. Ryan, and, on the brief, Charles A. Deluca, for the appellant in the first case and the appellee-cross appellant in the second case (plaintiff).

      Hugh D. Fyfe, with whom were Richard G. Monaco and, on the brief, Marie J. McIntyre, for the appellee in the first case and the appellant-cross appellee in the second case (defendant).
   Shea, J.

These appeals involve the zoning regulations for a tract of land in the town of Greenwich that permit its use for business executive offices by a single occupant. In the first case, the plaintiff, Primerica, then the American Can Company, brought an administrative appeal to the Superior Court after the defendant, the Greenwich planning and zoning commission (commission), denied its petition to amend the town’s zoning regulations by deleting the single executive occupancy limitation in the town’s “BEX-50” zone. The trial court dismissed the plaintiffs appeal, finding that the commission’s decision not to amend the regulations was neither arbitrary nor confiscatory. In the second case, the plaintiff challenged subsequent amendments to the zoning regulations that increased the occupancy limitation but reduced the permitted employee density. The trial court, in sustaining the plaintiff’s appeal, concluded that the commission had acted arbitrarily in the way that it amended the zoning regulations. These appeals followed.

In the first appeal, the plaintiff claims that the trial court erred in finding that the commission’s decision not to delete the single occupancy limitation was neither arbitrary nor confiscatory. In the second appeal, the commission claims that the trial court erred in concluding that: (1) the plaintiff, as a lessee, was aggrieved by the commission’s decisions; and (2) the commission acted arbitrarily in the way that it amended the zoning regulations. In its cross appeal in the second case, the plaintiff claims that the trial court erred in concluding that the plaintiff did not have standing as an owner of property in New York that abutted the subject property in Connecticut. We find no error in both appeals, and we decline consideration of the issue raised in the . plaintiffs cross appeal.

The following facts are relevant to these appeals. In 1967, the construction of interstate route 87, now 1-684, isolated a 228 acre triangular parcel of land in the northwest corner of Greenwich from the remainder of the town. At that time, the parcel was within a four acre residential zone. With the construction of 1-87, however, the parcel was difficult for the town to service, because no roads from Greenwich crossed 1-87 into the parcel. Access to the parcel, therefore, could be obtained only through New York by way of King Street, a two-lane road that runs in New York parallel to the Connecticut and New York state line. Thus, police and fire services to the parcel would be substantially delayed. Further, the parcel was not serviced by public water or public sewage systems. The construction of 1-87 also brought with it the possible expansion of the nearby Westchester Airport, because the airport would become more accessible to Westchester and Fair-field counties. The parcel was located directly within the path of a major runway of the airport.

Not surprisingly, the commission determined that the triangular parcel was no longer suitable for residen- ' tial zoning. Accordingly, in conjunction with negotiations with the plaintiff, the commission created a new zone, the BEX-50 zone, for this parcel. The purpose of this new zone, as stated in the Greenwich zoning regulations, was “to provide areas for business executive offices in landscaped settings with low land coverage on large tracts.” Greenwich Building Zone Regs. § 6-108 (a). The minimum lot size was set at fifty acres, and additional regulations governing the use and occupancy of property within the zone were enacted. These regulations are contained in § 6-108 of the Greenwich building zone regulations. Among the restrictions on property in the new zone were the single occupant restriction contained in § 6-108 (b) (1) (A) and the limit on employee density in § 6-108 (b) (1) (B). These subsections provided as follows: “(A) No more than one office building or group of office buildings devoted to a single executive office occupancy and use and accessory buildings shall be located on any one lot. (B) Any lot developed for executive office use in this zone shall be limited in use to a maximum number of employees on the site, determined by the size of such lot, measured in acres or fractions thereof, multiplied by a figure of twenty-five (25) employees per acre.”

After the BEX-50 zone was created, the plaintiff acquired 154.59 acres in the new zone, along with 26.62 acres in New York that abutted the Connecticut property. In 1970, the plaintiff completed construction of various buildings on the property and used the premises as its corporate headquarters. The plaintiffs facilities included a main office building and a senior executive building totaling approximately 590,000 square feet, a guest house, various outbuildings, and parking for 2539 vehicles, 2112 of which could be parked inside. At the time the BEX-50 zone was created, the commission believed that the existing roads could withstand the anticipated traffic without undue disturbance of residential areas.

Although the town’s regulations permitted 3875 employees on the site, the headquarters facilities, built to the plaintiffs specifications, were configured in such a fashion that they had a useful capacity of only 2850 employees. At its peak activity, the plaintiff had 2400 employees at the site. A change in the plaintiffs mode of operations, however, led to the further underutilization of its facilities, because executive functions once performed by employees at the corporate headquarters were now performed by autonomous subsidiaries located throughout the country. By 1984, the plaintiff’s facilities were being used by only 1000 employees. Since the plaintiff no longer required the entire facility, it attempted to market the facility to a single executive user, as the zoning regulations would not permit it to lease the portions of the headquarters that were empty. The plaintiff, however, was unable to sell the property. The plaintiff’s real estate broker testified that the single occupancy restriction had a “major detrimental effect” on his efforts to sell the facilities.

In order to realize the value of this underutilized corporate asset and to raise cash through a sale of the property, the plaintiff petitioned the commission on October 31,1984, to amend the zoning regulations by eliminating the single occupancy limitation in the BEX-50 zone. At the public hearings before the commission, the volume of traffic on King Street and the impact of the proposed amendment on that volume of traffic assumed prime importance. The plaintiff presented to the commission a study on King Street traffic to demonstrate that unlimited occupancy of the subject property would generate less peak hour traffic. The commission, however, found that this study was only of limited value, because it consisted of spot studies of much smaller office buildings. The commission also had before it a letter from the town traffic engineer, in which he indicated that multiple occupant use tends to increase off peak traffic, as there are more visitors and a duplication of deliveries and service calls. Further, the commission heard testimony and received letters from several residents and residential associations in the King Street area. These residents complained of the traffic congestion on King Street and suggested that an amendment eliminating the single executive user limitation would aggravate already dangerous conditions.

On May 7,1985, the commission denied the plaintiffs petition. The commission concluded that retention of the single occupancy restriction offered the best opportunity for controlling the level of traffic on King Street and that unlimited multiple occupancy would exacerbate traffic problems in that area, because, among other reasons, there would be increased visits and duplicated services. The commission also advised its staff that it would consider different amendments to the BEX-50 regulations that addressed the commission’s concerns relating to traffic.

The commission held a public hearing on its staff’s proposal to amend the BEX-50 regulations. Among other revisions, the staff proposed replacing the single occupancy restriction with a ten occupant limit. The staff proposed also amending the twenty-five employee per acre density limit. In the case of a single occupancy, the staff’s proposal would retain the per acre limit of twenty-five employees, including temporary and support personnel. In the case of multiple occupancy, the staff proposed a new limit of eighteen employees per acre, including temporary and part-time employees, with support personnel being in addition thereto, for a combined maximum of twenty employees per acre. On June 4,1985, the commission amended the regulations governing the BEX-50 zone. Under the amended regulations, no more than one executive occupant was permitted on any one fifty-acre lot. On larger lots, more than one executive occupant could occupy a group of buildings, provided that there was a minimum of fifty acres for each occupant. Thus, the plaintiff’s property, consisting of 154.59 acres, could accommodate three occupants. With respect to the permitted employee density, the new regulation retained the twenty-five employees per acre limit, in the case of a single occupant, but lowered the limit to eighteen employees per acre, in the case of multiple occupants. Support personnel were allowed in addition to the eighteen per acre limit, but the maximum number of employees could not exceed twenty employees per acre.

The plaintiff appealed, first, from the commission’s May 7, 1985 decision to deny its petition to eliminate the single occupancy restriction, and second, from the commission’s June 4, 1985 decision to amend the BEX-50 regulations. The two appeals were consolidated for trial before the court. The trial court dismissed the appeal from the May 7, 1985 decision, but sustained in part the appeal from the June 4, 1985 decision.

I

We first consider whether the plaintiff had standing to challenge the decisions of the commission. We address the question of standing for both appeals at this juncture, because the two appeals were consolidated for trial and because the principles governing the requirement of standing are applicable to both cases. General Statutes §§ 8-8 and 8-9 permit appeals from a decision of a planning and zoning commission only by one “aggrieved” by a contested decision. This court has held that compliance with the aggrievement requirement encompasses a twofold test. “First, the party claiming aggrievement must demonstrate a specific, personal and legal interest in the subject matter of the decision, as distinguished from a general interest, such as is the concern of all members of the community as a whole. Second, the party claiming aggrievement must establish that this specific, personal and legal interest has been specially and injuriously affected by the decision.” Hall v. Planning Commission, 181 Conn. 442, 444, 435 A.2d 975 (1980). The question of aggrievement is one of fact to be determined by the trial court on appeal. Hughes v. Planning & Zoning Commission, 156 Conn. 505, 508, 242 A.2d 705 (1968).

This court has not set forth a precise standard that defines the required interest a nonowner must possess in order to become an aggrieved party under §§ 8-8 and 8-9. Rather, we have held that the extent to which a party with an interest in the property other than that of an owner is aggrieved depends upon the circumstances of each case, because the concept of standing is a practical and functional one designed to ensure that only those parties with a substantial and legitimate interest can appeal an order. See, e.g., Bell v. Planning & Zoning Commission, 174 Conn. 493, 498, 391 A.2d 154 (1978); Nader v. Altermatt, 166 Conn. 43, 53, 347 A.2d 89 (1974); Hughes v. Planning & Zoning Commission, supra.

On December 19, 1986, while these appeals were pending in the trial court, the plaintiff sold the subject property and buildings to Greenwich-American Limited Partnership, an unrelated entity, but retained four interests in the property. First, the plaintiff has become the lessee of 320,000 square feet in the complex, which is 55 percent of the total square footage. This lease runs for ten years with extension rights for another fifteen years. The plaintiff also leases the entire guest house. Second, the plaintiff is a rent guarantor for the remaining 45 percent of the complex. The rent guarantee runs for a period of five years. Third, the plaintiff has a right of first refusal for the property in the event that the new owner sells, conveys, or transfers all or any portion of its interest. Finally, the plaintiff holds a purchase money mortgage upon the property in the amount of $15.1 million.

The commission acknowledges that the plaintiffs interest in the subject property prior to December 19, 1986, was sufficient to establish aggrievement. The commission claims, however, that as a result of the sale, the plaintiff cannot satisfy the first prong of the Hall test, because it no longer maintains the level of ownership that is necessary to establish aggrievement. The commission emphasizes that, the plaintiff entered into a new lease for a ten year term for only a portion of the property.

It is quite clear that in order to retain standing as an aggrieved person, a party must have and must maintain a specific, personal and legal interest in the subject matter of the appeal throughout the course of the appeal. See Craig v. Maher, 174 Conn. 8, 9, 381 A.2d 531 (1977); Goldfeld, v. Planning & Zoning Commission, 3 Conn. App. 172, 177, 486 A.2d 646 (1985). It is not enough for a party to have an interest in the property sufficient to establish aggrievement only at the time of the application to the commission.

The trial court found that after the sale, the plaintiff had retained enough interests in the property to be considered an aggrieved party. That factual finding is consistent with the cases in which we have implicitly found lessees to be aggrieved parties, in that they were allowed to maintain appellate proceedings. See, e.g., Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 365 A.2d 387 (1976); Nielsen v. Board of Appeals on Zoning, 129 Conn. 285, 27 A.2d 392 (1942); see also Gregorio v. Zoning Board of Appeals, 155 Conn. 422, 232 A.2d 330 (1967). Further, the fact that the plaintiffs lease was for ten years and for only a portion of the office space does not preclude a finding of aggrievement. The commission does not quarrel with Bowen v. Metropolitan Board of Zoning Appeals, 161 Ind. App. 522, 317 N.E.2d 193 (1974), in which the court found standing for an applicant who leased the entire premises under a ninety-nine year lease. It stresses the duration of that lease as compared to the plaintiffs lease. This distinction is untenable, however, because the court made clear that the crucial point was not the length of the tenancy, but whether the tenant was a mere tenant at will. Id., 529; see also Richman v. Philadelphia Zoning Board of Adjustment, 391 Pa. 254, 137 A.2d 280 (1958) (cited as authority in Bowen; tenant with five year lease of one floor in four story building held to be an aggrieved party).

With respect to the second prong of the Hall test, the commission claims that the plaintiff did not demonstrate specific injury and that the trial court presumed that the plaintiffs leasehold interest was sufficient to constitute specific injury without requiring that the plaintiff demonstrate such an injury. The trial court found, however, that the plaintiffs interests had been adversely affected by the commission’s decisions. The court stated that the decisions “directly affect the very use of the premises the [plaintiff] now occupies and its legal obligations and interests as to the whole property.” In view of this finding, which is adequately supported by the evidence, we see no reason why the plaintiff, to establish aggrievement, should be required to make a more specific showing as to the injury resulting from the commission’s decisions. We conclude that the trial court was not in error in finding that the plaintiff remained an aggrieved party.

II

In the first appeal, the plaintiff claims that the trial court erred in concluding that the commission’s decision not to delete the single occupancy limitation was neither arbitrary nor confiscatory. Because this claim involves a decision upon an application for a change in the zoning regulations, the trial court was required to review a decision made by the commission in its legislative capacity. Burnham v. Planning & Zoning Commission, 189 Conn. 261, 265, 455 A.2d 339 (1983). In such circumstances, it is not the function of the court to retry the case. Conclusions reached by the commission must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the agency. The question is not whether the trial court would have reached the same conclusion but whether the record before the agency supports the decision, reached. Calandro v. Zoning Commission, 176 Conn. 439, 440, 408 A.2d 229 (1979). The action of the commission should be sustained if even one of the stated reasons is sufficient to support it. Goldberg v. Zoning Commission, 173 Conn. 23, 26, 376 A.2d 385 (1977).

The plaintiff argues that the reasons given by the commission for denying the petition were not supported by the record, and therefore, the commission acted arbitrarily in its decision. We conclude, however, that the record adequately supports the commission’s decision.

In denying the plaintiff’s petition, the commission made several findings concerning the relationship between traffic on King Street and the plaintiff’s proposed use of its facility. Three of these findings are noteworthy. First, the commission stated that present traffic volumes in the King Street area were detrimental to the welfare and safety of residents living along King Street. Second, the commission found that peak hour traffic would be increased by a multiple tenant use and that a single tenant use provided better opportunities for traffic management controls. Third, the commission found that the number of trips “generated from the potential increase of visitors, duplicate delivery services and guests associated with accessory activities, such as conferences and training sessions from each executive office user, could generate unacceptable traffic volumes, especially at peak hours on King Street . . . . ”

The trial court found that there was no credible evidence in the record that multiple occupancy would increase traffic during peak hours. That finding, however, does not end the inquiry, because, as stated earlier, the action of the commission should be sustained if even one of the stated reasons is sufficient to support it. Burnham v. Planning & Zoning Commission, supra. In the present case, although the commission focused on peak hour traffic, its reasons for denying the petition encompass a finding of congestion on King Street during off peak hours.

The plaintiff maintains that there is no evidence of congestion in the King Street area during off peak hours, nor is there evidence that the elimination of the single occupancy restriction would create such congestion. The commission, however, heard testimony and received letters from residents and representatives of residential associations in the King Street area who complained of the heavy traffic already on King Street. Their complaints were not limited to concerns over peak hour traffic. This evidence supports a finding by the commission of congestion in the King Street area throughout the day, not simply during peak hours, and the commission members were entitled to rely upon their own knowledge of the area to confirm the facts to which the King Street area residents had testified. See Burnham v. Planning & Zoning Commission, supra, 267. Having made such a determination, the commission could reasonably have concluded that the addition of an unknown number of vehicles, from visitors and duplicate telephone, copier and office supply services, for an unlimited number of tenants, would serve only to exacerbate an existing dangerous condition in that neighborhood. Because this reason was sufficient to support the commission’s decision, we conclude that the record reasonably supports the denial of the plaintiffs petition in this case and that the action of the commission was not arbitrary, illegal or an abuse of its discretion.

The plaintiff maintains also that the single occupancy limitation is confiscatory, because the application of this restriction to this property “practically destroys its value for any permitted use to which it can reasonably be put. . . State National Bank v. Planning & Zoning Commission, 156 Conn. 99, 106, 239 A.2d 528 (1968). The maximum possible enrichment of a particular landowner, however, is not a controlling purpose of zoning. Id., 102; Corsino v. Grover, 148 Conn. 299, 311,170 A.2d 267 (1961). Mere reduction in value will not suffice for a claim of confiscation. DeForest & Hotchkiss Co. v. Planning & Zoning Commission, 152 Conn. 262, 271-72, 205 A.2d 774 (1964). The trial court heard testimony that the underutilization of the property was due primarily to the configuration of the buildings and to the plaintiff’s decision to decentralize its corporate operations. Further, at the time of the plaintiff’s petition to amend the BEX-50 regulations, the plaintiff was conducting its business on the site with 1000 employees. We agree with the trial court that, under such circumstances, the single occupancy limitation can hardly be said to have prevented the property’s “effective use for any purpose allowed by law.” Horwitz v. Waterford, 151 Conn. 320, 324, 197 A.2d 636 (1964).

The action of the commission in denying the application for a change and leaving the property in its previous classification, therefore, was based on reasonable grounds and cannot be said to be arbitrary or confiscatory.

Ill

On June 4, 1985, the commission adopted in modified form a staff proposal to amend the BEX-50 regulations. The commission rejected the portion of the proposal that would have allowed as many as ten executive users per lot and instead amended the regulations to allow the number of occupants that would be possible if the site were subdivisible. The effect of this amendment was to permit three occupants on the plaintiff’s 154.59 acre property. The amendment also established an eighteen employee per acre density in the case of multiple occupants. In sustaining the plaintiff’s appeal from the commission’s decision, the trial court found no basis in the record: (1) for the limitation of three occupants on the premises; and (2) for the reduction of the employee density in the event of multiple occupancy. The commission claims that the trial court assumed a legislative function and should have dismissed the appeal. We disagree.

As we indicated in part II, in order for the commission’s action to be sustainable, the record before the agency must support the decision reached. Calandro v. Zoning Commission, supra. During the public hearings and in the minutes of the commission’s deliberations, increased traffic volume was the real concern. Yet, the commission gave no specific reasons why it put a limit of three occupants on the subject property, other than that it wished to accommodate the number of users that would be possible if the site were subdivisible, while retaining the concept of a single use per fifty acres. Rather, the commission made the general statement that multiple occupancy in the BEX-50 zone would lead to greater congestion during peak hour traffic. We agree with the trial court that there is nothing in the record to support this proposition. As the trial court noted, the sheer randomness of opening and closing times in multiple occupancy buildings suggests a reduction or spreading out of peak hour congestion, and in any event, traffic management controls can be required in. single as well as multiple occupant buildings.

The reduction in the allowable employee density was an effort by the commission to offset the presumed adverse effects on peak hour traffic resulting from the corresponding increase in the number of corporate occupants. We again agree with the trial court that the commission’s finding of a connection between these two variables has no support in the record. First, there is nothing in the record to indicate how much extra visitor and delivery traffic would be generated by either three or ten occupants in this type of zone. Second, and more fundamentally, the concerns embodied in the two zoning amendments are unrelated. The record indicates that the employee density affects peak hour traffic, when employees arrive at and leave a work facility, while the number of corporate occupants affects the off peak traffic, as a result of duplicated deliveries and services. The density reduction, therefore, designed to offset the occupancy increase, misses the mark, and in any event, the reasons underlying the occupancy increase have no support in the record. Accordingly, because the record does not support the commission’s decision, we conclude that the trial court did not err in sustaining the plaintiffs second appeal.

There is no error in either case.

In this opinion the other justices concurred.

       King Street runs through a portion of Greenwich, but ends where it intersects with 1-87. The street begins again on the other side of 1-87, in New York, and runs parallel to the Connecticut-New York state line. In order to continue on King Street, therefore, a traveler must exit it and follow the connecting roads that pass under 1-87 and later reconnect with King Street in New York. King Street is the primary access to certain Greenwich residential areas.

       The petition was actually filed by Bruce F. Cohen, as a property owner in the town of Greenwich and as attorney for the plaintiff. Cohen and the plaintiff commenced the appeal from the commission’s May 7, 1985 decision. By order dated August 12,1985, the appeal was dismissed as to Cohen for lack of standing. For simplicity we refer to “the plaintiff’s petition” throughout this opinion.

       Because we hold that the plaintiff, as a lessee, remained an aggrieved party in this case, we need not decide whether its status as an abutting landowner in New York was sufficient to constitute aggrievement.

       Similarly, in the first appeal, no finding was made by the commission as to how much extra visitor and delivery traffic would be generated by a change in the single occupancy limitation. The first appeal, however, involved a proposal that would have allowed an unlimited number of corporate occupants. Thus, making such a finding in the first case would have been more difficult, if not entirely speculative.


author: Glass, J.

text:
    State of Connecticut v. Lee Gary
    (13448)
    Peters, C. J., Healey, Shea, Callahan, Glass, Covello and Hull, Js.
    Argued January 31
    decision released May 9, 1989

      Jon C. Blue, former assistant public defender, with whom, on the brief, was Joette Katz, former public defender, for the appellant (defendant).

      Mary H. Lesser, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, send Elpedio Vitale, assistant state’s attorney, for the appellee (state).
   Glass, J.

The defendant, Lee Gary, was found guilty by a jury of larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). He appealed to the Appellate Court from the judgment of conviction rendered on the verdict, claiming that the trial court erred (1) in denying his motion for a mistrial after the complaining witness stated in the jury’s presence that the defendant previously had pleaded guilty to the crime for which he was on trial, and (2) in failing to instruct the jury that to convict him of larceny in the second degree, the state had to prove beyond a reasonable doubt that he had taken property from the person of another. We transferred the case to ourselves pursuant to Practice Book § 4023. We find no error.

The jury could reasonably have found the following facts. In the early morning of August 29, 1986, the defendant accosted the victim, Rosemary Furman, as she walked a short distance from a friend’s house to her sister’s house in New Haven. Furman recognized the defendant from previously having seen him in the neighborhood. The defendant asked Furman if she would have sex with him for money. Furman refused. Thereafter, as they stood in front of Furman’s sister’s house, the defendant snatched a gold wristwatch that hung loosely from her arm, and fled. Furman gave chase, but stopped shortly after she saw the defendant’s mother seated in an automobile. When the defendant’s mother asked what was happening, Furman replied, “[t]hat guy just took my watch.” The defendant’s mother then responded, “[tjhat’s my son, call the cops.”

On the night of the incident, Furman’s two nieces, April and Kimberly, observed Furman running down the street. In addition, Kimberly observed that Fur-man was chasing the defendant. After the defendant had evaded Furman’s pursuit, Furman went to the New Haven police station where she identified the defendant’s mug shot. A week or two after the incident, the defendant spoke to Furman’s niece, April, apologized for taking the watch, and said that he would not have done so had he known that Furman was her aunt. According to April, the defendant’s sister was present when the defendant apologized. The defendant repeated this statement to April during a telephone conversation approximately one month later.

On June 4, 1987, the state filed a substitute information charging the defendant with the crimes of robbery in the third degree in violation of General Statutes § 53a-136 (a), and larceny in the second degree in violation of General Statutes § 53a-123 (a) (3). The defendant pleaded guilty to the larceny count, and the robbery count was nolled. Under the plea agreement, the defendant was to receive a ten year prison sentence suspended after six years, and five years probation. Thereafter, however, the defendant moved to withdraw his guilty plea, and on July 17, 1987, the trial court granted his motion. On July 27, 1987, the state filed a new substitute information charging the defendant with robbery in the third degree and larceny in the second degree. The defendant pleaded not guilty to the charges in the second substitute information and elected a jury trial.

The record discloses that on the first day of trial, August 4,1987, following Furman’s testimony concerning the theft of the watch, the state’s attorney asked her whether she had had any conversations with the defendant subsequent to the incident. Upon Furman’s affirmative response, the defendant objected on the ground that any conversations between Furman and the defendant after the date of the incident were irrelevant. The trial court excused the jury to permit the state to present an offer of proof. With the jury out of the courtroom, Furman stated that after the defendant had pleaded guilty in June, 1987, he had called her several times from jail and asked her to drop the charges and not to respond to á subpoena. The trial court overruled the defendant’s objection and recalled the jury to the courtroom.

After the jury returned, the following exchange took place between the state’s attorney and Furman:

“Q. Ms. Furman, subsequent to August twenty nine, nineteen eighty six have you had the opportunity to have conversations with the defendant, Mr. Gary?

“A. Yes.

“Q. Have you had telephone conversations with him?

“A. Yes.

“Q. And how did those occur?

“A. The last time that we came to court he had pleaded guilty and said he took the watch and they gave him six years.”

The defendant immediately objected to Furman’s statement. The trial court forthwith instructed the jury: “At this point, the injury [sic] will disregard what was just said.” On the defendant’s request, the trial court excused the jury, stating that “[y]ou just have to bear with us. This is usual, this is normally [sic] in a criminal case. There are things that have to be resolved in your absence.” After the jury left the courtroom, the defendant moved for a mistrial on the grounds that Fur-man’s statement irreparably prejudiced the jury, and that any curative instructions by the trial court would be futile. The court denied the defendant’s motion, stating that Furman’s statement was “volunteered” and nonresponsive to the state’s attorney’s question. Defense counsel excepted to the court’s denial of his motion, and then asked the court how it intended to “handle” the situation. The trial court stated that it would reinstruct the jury upon its return to “totally disregard” Furman’s statement. The court also admonished Furman to answer only the questions asked of her, and to refrain from referring to any plea of guilty or any term of incarceration.

Upon the jury’s return, the trial court gave the following instructions: “Let me again make it clear to you, as the jury, there was a question asked of this witness before you were excused from the courtroom. She really did not respond to the specific question, but then she made a statement about her opinion or conclusions about some other course of conduct relating to this defendant. I have already told you that you are to totally disregard her response to the last question. And so, therefore, you are only really to decide this case only on the basis of proper evidence that comes out in the course of this trial.” Following this instruction, Fur-man testified that while awaiting trial the defendant had called her several times requesting her to drop the charges and to ignore any subpoena;

After the state had concluded its case on August 5, 1987, it withdrew the robbery count. The only witness presented by the defendant was the deputy warden of the Whalley Avenue Correctional Center in New Haven. He testified that each inmate is permitted only ten minutes a day in which to make telephone calls to the outside. The jury found the defendant guilty of larceny in the second degree. On August 14,1987, the trial court sentenced him to ten years imprisonment, execution of the sentence suspended after seven years, followed by three years probation. Thereafter, the defendant filed a motion for a new trial on the ground that he was denied a fair trial because of Furman’s disclosure of the prior guilty plea. The trial court denied the defendant’s motion at a hearing on August 28, 1987.

I

The defendant first claims that the trial court erred in denying his motion for a mistrial after Furman remarked that the defendant had pleaded guilty to the offense for which he was on trial. He argues that Fur-man’s statement violated Practice Book § 718 as well as the right against self-incrimination and the presumption of innocence underlying § 718. He further argues that the remark so prejudiced the jury that he could no longer receive a fair trial. Finally, he asserts that even if the prejudicial effect of such a remark could be cured by subsequent instructions, the trial court’s instructions in this case were inadequate. We are not persuaded.

“A trial court should grant a motion for mistrial only where it is apparent that an occurrence during the trial has so prejudiced a party that he can no longer receive a fair trial. State v. Fleming, 198 Conn. 255, 264, 502 A.2d 866 (1986); State v. Binet, 192 Conn. 618, 628, 473 A.2d 1200 (1984); State v. Ubaldi, 190 Conn. 559, 562, 462 A.2d 1001, cert. denied, 464 U.S. 916,104 S. Ct. 280, 78 L. Ed. 2d 259 (1983). The trial court enjoys broad discretion in deciding whether a mistrial is warranted, and its decision will be reversed on appeal only if this discretion has been abused. State v. Fleming, supra; State v. Nowakowski, 188 Conn. 620, 624, 452 A.2d 938 (1982).” State v. Smith, 200 Conn. 544, 548-49, 512 A.2d 884 (1986).

The defendant first argues that the trial court’s denial of his motion for a mistrial violated the mandate of Practice Book § 718. We disagree. Practice Book § 718 provides: “No evidence of the court proceedings at which a plea of guilty or nolo contendere was entered, where such plea is not accepted by the judicial authority or is later withdrawn pursuant to Sec. 719, shall be received at the trial of the case.” In the present case, the trial court excluded Furman’s nonresponsive remark by instructing the jury totally to disregard it. Because Furman’s remark was not available to the jury as “evidence” of the defendant’s guilt, there was no violation of § 718. Further, because § 718 was not violated, we need not consider the defendant’s argument that § 718 effectuates the rights against self-incrimination and to be presumed innocent.

The defendant also claims that Furman’s remark had such a “devastating prejudicial impact” on the jurors’ minds that any mitigating instructions by the trial court would have been unavailing. In essence, he argues that we should adopt a per se rule that the disclosure of such ..information to the jury requires a mistrial. We acknowledge that some jurisdictions hold that a witness’ improper reference to the defendant’s prior guilty plea is prejudicial beyond cure, and requires an automatic mistrial. See, e.g., People v. Haycraft, 76 Ill. App. 2d 149,153-54, 221 N.E.2d 317 (1966); State v. Boone, 66 N.J. 38, 50, 327 A.2d 661 (1974); State v. Jensen, 74 Utah 299, 306, 279 P. 506 (1929). Other courts, however, hold expressly or implicitly that a determination whether the trial court should have granted a mistrial must be made on a case-by-case basis. See, e.g., Cambridge v. Duckworth, 859 F.2d 526, 532 (7th Cir. 1988); United States v. Sopczak, 742 F.2d 1119,1122-23 (8th Cir. 1984); United States v. Grunsfeld, 558 F.2d 1231, 1242 (6th Cir.), cert. denied, 434 U.S. 872, 98 S. Ct. 219, 54 L. Ed. 2d 152 (1977); United States v. Tesack, 538 F.2d 1068 (4th Cir.), cert. denied, 429 U.S. 1025, 97 S. Ct. 646, 50 L. Ed. 2d 627 (1976); United States v. Doamarel, 567 F. Sup. 254, 264 (D. Del. 1983), aff'd, 729 F.2d 1449 (3d Cir.), cert. denied, 467 U.S. 1253, 104 S. Ct. 3539, 82 L. Ed. 2d 843 (1984); Thessen v. State, 454 P.2d 341, 350 (Alaska 1969), cert. denied, 396 U.S. 1029, 90 S. Ct. 588, 24 L. Ed. 2d 525 (1970); State v. Simonson, 112 Idaho 451, 457, 732 P.2d 689 (Idaho App. 1987); People v. Oliver, 111 Mich. App. 734, 757, 314 N.W.2d 740 (1981); Standen v. State, 101 Nev. 725, 728, 710 P.2d 718 (1985); Blankenship v. State, 219 Tenn. 355, 360-61, 410 S.W.2d 159 (1966); cf. United States v. Levy, 578 F.2d 896, 902 (2d Cir. 1978).

We find more persuasive the decisions requiring a case-by-case analysis. Consequently, we decline to adopt a per se rule requiring the trial court to grant a motion for a mistrial whenever a witness improperly refers to a defendant’s withdrawn guilty plea in the jury’s presence. A per se mistrial requirement would be inconsistent with the well established principle that the trial court has wide discretion in determining whether a mistrial is appropriate. State v. Smith, supra, 548; State v. Ubaldi, supra, 562. The discretion accorded the trial court derives from the practical consideration that the trial court is in a far better position than a reviewing court to ascertain whether incidents occurring at trial warrant a mistrial. Further, an automatic mistrial requirement gives short shrift to the principle that, absent contrary evidence, jurors are presumed to follow the trial court’s instructions. State v. Boscarino, 204 Conn. 714, 724, 529 A.2d 1260 (1987); State v. Williams, 204 Conn. 523, 534, 529 A.2d 653 (1987); State v. Rouleau, 204 Conn. 240, 254, 528 A.2d 343 (1987); State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987). As the Court of Appeals for the Seventh Circuit observed, in a case also involving a witness’s extemporaneous disclosure of the defendant’s withdrawn guilty plea, “[a] jury is normally presumed to disregard inadmissible evidence brought to its attention unless there is an overwhelming probability that the jury will not follow the trial court’s instructions and a strong likelihood that the inadmissible evidence was devastating to the defendant.” Cambridge v. Duckworth, supra, 532, citing Greer v. Miller, 483 U.S. 756, 766 n.8, 107 S. Ct. 3102, 756, 766 n.8, 97 L. Ed. 2d 618 (1987); see also United States v. Grunsfeld, supra, 1242. In light of these fundamental principles, we are not inclined to take judicial notice that ordinary persons serving as jurors are “psychologically” incapable of disregarding such information when ordered to do so by the trial court.

Further, under the narrow circumstances of the present case, we conclude that the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. As noted above, this is not a case in which the trial court admitted the defendant’s guilty plea as evidence. Cf. Kercheval v. United States, 274 U.S. 220, 225, 47 S. Ct. 582, 71 L. Ed. 1009 (1927); United States ex rel. Spears v. Rundle, 268 F. Sup. 691, 699 (E.D. Pa. 1967), aff'd, 405 F.2d 1037 (3d Cir.1969); People v. Quinn, 61 Cal. 2d 551, 554-55, 393 P.2d 705, 39 Cal. Rptr. 393 (1964). Nor is this a case in which the jury was exposed to information of the defendant’s guilty plea through the actions of the prosecuting attorney. Cf. State v. Reardon, 245 Minn. 509, 511-12, 73 N.W.2d 192 (1955); People v. Street, 288 Mich. 406, 409, 284 N.W. 926 (1939); State v. Boone, supra, 50; Frantz v. State, 70 Okla. Crim. App. 214, 226, 105 P.2d 561 (1940). As the defendant concedes, there is no indication whatsoever that either the state or the court encouraged Furman’s extemporaneous remark. Further, the trial court’s prompt curative instructions forcefully admonished the jury to disregard Furman’s remark entirely. Cambridge v. Duckworth, supra, 529; United States v. Sopczak, supra, 1122; Thessen v. State, supra, 350. In addition, Furman was not an official, such as a lawyer, law enforcement officer or public official. Indeed, after the jury had been recalled, the court cautiously and skillfully sought to eliminate any residual prejudice by characterizing the witness’s comment as opinion. “There is simply nothing in the record to indicate that [the witness’s] mention of the guilty plea was anything more than an inadvertent response from a lay witness unskilled in the rules of evidence.” Cambridge v. Duckworth, supra, 529. The jury therefore would not have been predisposed toward perceiving her isolated remark as especially informed or reliable.

For the reasons discussed above, we reject the defendant’s argument that the trial court’s second admonition to the jury exacerbated Furman’s inadvertent remark by drawing further attention to the fact that it was made. Further, the record does not support the defendant’s assertion that he “promptly excepted” to the trial court’s proposed reinstruction to the jury to disregard Furman’s comment. After the trial court excused the jury, it listened to counsel for both parties on the defendant’s motion for a mistrial. The court concluded anyway that “at this point I am going to deny your request for a mistrial.” Defense counsel took an exception, which the trial court noted. Defense counsel then asked how the court intended to handle the situation. The trial court stated: “When they come in, I am going to make it very clear to them that the last response was really not responsive to the specific question and they are totally to disregard it.” Defense counsel interposed no objection. The state’s attorney then suggested that the court instruct the witness not to refer to the guilty plea or to the defendant’s incarceration. After a brief exchange between the court and Furman, the trial court asked: “Anything else?” Defense counsel responded, “If I may take an exception.” From the record before us, it is unclear whether defense counsel intended this exception to apply to the denial of the motion for a mistrial or to the trial court’s proposed reinstructions. Given our inability to determine the import of defense counsel’s exception even after careful scrutiny, we cannot conclude that the trial court should have understood the exception to apply to the court’s proposal to reinstruct the jury.

Moreover, we are satisfied that the admissible evidence of the defendant’s guilt was so overwhelming that the reference to the prior plea was harmless beyond a reasonable doubt. Cambridge v. Duckworth, supra, 532; United States v. Tesack, supra; United States v. Doamarel, supra, 264; State v. Simonson, supra, 457; Standen v. State, supra, 720. Furman posilively identified the defendant as having stolen her wristwatch. She had seen the defendant in the neighborhood on previous occasions and knew who he was. Further, since the watch was stolen from her person, she had the opportunity to observe him closely. Fur-man also identified the defendant’s photograph at the police station immediately after the incident. Her identification of the defendant was corroborated by her niece Kimberly. In addition, Furman testified that the defendant had attempted on several occasions to persuade her not to testify against him. There also was evidence that the defendant had apologized for stealing the watch to Furman’s niece April on two occasions. Finally, there was evidence that the defendant’s mother saw and identified him as he raced away from the scene of the crime. “The prosecution’s case was not built upon inferences derived from circumstantial evidence such that the jurors may have used the guilty plea to buttress inferences from the evidence.” Cambridge v. Duckworth, supra, 532. We conclude, therefore, that Furman’s disclosure of the guilty plea did not prejudice the defendant.

II

The defendant next claims that the trial court inadequately instructed the jury on the crime of larceny in the second degree. The defendant did not distinctly raise this claim at the trial; Practice Book § 852; but argues that it is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), because it implicates his due process right not to be convicted except upon proof beyond a reasonable doubt of each element necessary to constitute the crime charged. See State v. Gabriel, 192 Conn. 405, 413, 473 A.2d 300 (1984).

The defendant was charged and tried for violating General Statutes § 53a-12S (a) (3), which provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and . . . (3) the property, regardless of its nature or value, is taken from the person of another.” The defendant takes issue with the trial court’s following instruction: “Now, I will again remind you that in this case, as I instructed you, larceny in the second degree provides that if a larceny is committed, the property, regardless of its nature or value, must be just taken from the person. So, therefore, you have heard testimony regarding what the cost of this watch was when it was purchased. But the statute specifically provides that regardless of its nature or value, the fact that it is taken from the person establishes the offense of larceny.” The defendant argues that this portion of the trial court’s instructions inadequately apprised the jury that the “taking” element of the crime as charged had to be proven beyond a reasonable doubt. He argues that the trial court’s failure specifically to designate “taking from the person of another” as an “element” of the crime was harmful in light of the trial court’s repeated instructions that the state had to prove each “element” of the crime charged.

A claim of error in jury instructions must be reviewed in the context of the charge as a whole. State v. Quintana, 209 Conn. 34, 47, 547 A.2d 534 (1988). “ ‘The charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.’ ” Id. An error of constitutional dimension in jury instructions requires reversal if it is reasonably possible that the jury was misled. Id., 50.

Based upon our review of the record, we are persuaded that the defendant’s claim is utterly meritless. The record demonstrates that the trial court throughout its charge discussed the requirement of “taking from the person of another” on several occasions, and that it did so in language that would guide the jury to a proper verdict. The trial court read § 53a-123 (a) (3) as well as the state’s substitute information, both of which clearly referred to the “taking” requirement. The court then stated that “each of the following elements must be proved by the State beyond a reasonable doubt.” In connection with the first element, that the defendant wrongfully took, obtained or withheld property from the owner, the trial court stated: “Taking means any wrongful taking of property away from the possession or control of the person who is entitled to that property . . . . ” In connection with the second element of “intent,” the court instructed the jury that “the State must prove beyond a reasonable doubt that this defendant took the property from Rosemary Fur-man for the purpose of keeping or using it permanently . . . or of disposing of that item . . . .” Finally, as noted above, the trial court instructed the jury that “larceny in the second degree provides that if a larceny is committed, the property . . . must be just taken from the person. . . . [T]he fact that it is taken from the person establishes the offense of larceny.” In light of the trial court’s instructions as a whole, we cannot conclude that the jury would have been misled by the court’s failure specifically to use the word “element” in its instructions on the requirement that the property be “taken from the person of another.”

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-123 (a) (3) provides: “A person is guilty of larceny in the second degree when he commits larceny as defined in section 53a-119 and ... (3) the property, regardless of its nature or value, is taken from the person of another.”
      General Statutes § 53a-119 provides in relevant part: “A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains ■or withholds such property from an owner.”

       General Statutes § 53a-136 (a) provides: “A person is guilty of robbery in the third degree when he commits robbery.” Robbery is defined in General Statutes § 53a-133 as follows: “A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”

       See footnote 1, supra.

       In State v. Carta, 90 Conn. 79, 83, 96 A. 411 (1916), we held that evidence of a withdrawn plea of guilty was admissible “as showing conduct on the part of the accused which was inconsistent with his claim of innocence before the jury.” We agree with the defendant and the state that in light of Practice Book § 718, Carta is no longer valid. See Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927).

       The defendant relies on a number of cases from other jurisdictions for the proposition that evidence of a withdrawn guilty plea violates the right against self-incrimination and the right to be presumed innocent. Many of these cases involved instances in which the trial court admitted evidence of a guilty plea. See Heim v. United States, 47 App. D.C. 485, 493, cert. denied, 247 U.S. 522, 38 S. Ct. 583, 62 L. Ed. 1247 (1918); United States ex rel. Spears v. Rundle, 268 F. Sup. 691, 699 (E.D. Pa. 1967), aff'd, 405 F.2d 1037 (3d Cir. 1969); State v. Wright, 103 Ariz. 52, 56, 436 P.2d 601 (1968); People v. Quinn, 61 Cal. 2d 551, 554-55, 393 P.2d 705, 39 Cal. Rptr. 393 (1964); Ely v. Haugh, 172 N.W.2d 144,150 (Iowa 1969); State v. Hayes, 285 Minn. 199, 200-201, 172 N.W.2d 324 (1969); People v. Spitaleri, 9 N.Y.2d 168,173,173 N.E.2d 35, 212 N.Y.S.2d 53 (1961); State v. Mathis, 287 S.C. 589, 591, 340 S.E.2d 538 (1986); see also Kercheval v. United States, 274 U.S. 220,225, 47 S. Ct. 582, 71 L. Ed. 1009 (1927) (under federal evidentiary law, it is impermissible for prosecutor to introduce evidence of withdrawn guilty plea and for court to permit jury to consider it). The remainder involve instances in which information of the guilty plea was purposefully elicited by the prosecution, or was testified to by a law enforcement officer or other official. See, e.g., People v. Haycraft, 76 Ill. App. 2d 149,151, 221 N.E.2d 317 (1966) (testimony by probation officer); People v. Street, 288 Mich. 406, 409, 284 N.W. 926 (1939) (prosecutor elicited testimony); State v. Reardon, 245 Minn. 509, 511-12, 73 N.W.2d 192 (1955) (prosecuting attorney introduced testimony); State v. Boone, 66 N.J. 38, 41, 327 A.2d 661 (1974) (question by prosecutor); Frantz v. State, 70 Okla. Crim. App. 214,218,105 P.2d 561 (1940) (county attorney introduced evidence); State v. Jensen, 74 Utah 299, 302, 279 P. 506 (1929) (sheriff testified to guilty plea). These factors, however, are not present in the case before us.

       We disagree with the defendant’s argument that, under Bruton v. United States, 391 U.S. 123,135, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the trial court should have declared a mistrial. In Bruton, the United States Supreme Court considered whether a codefendant’s confession admitted in a joint trial violated the defendant’s sixth amendment rights, even though the trial court instructed the jury that it could not use the codefendant’s confession as evidence of the defendant’s guilt. The court held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of [the codefendant’s] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Id., 126. In the present case, however, the trial court did not admit Furman’s inadvertent reference to the defendant’s guilty plea for any purpose, but struck it immediately.

       Although during the state’s offer of proof Furman referred to the defendant’s guilty plea, the defendant did not object to her specific reference to the plea, or call the trial court’s or the state’s attention to her statement. The question asked by the state’s attorney when the witness was testifying before the jury concerning how her telephone conversation with the defendant had occurred was not objected to by the defendant apparently because the response concerning the defendant’s guilty plea was not anticipated.

       We note that after trial, the defendant moved for a new trial on the same grounds as asserted in his motion for a mistrial. The trial court denied the motion for a new trial.