source: Caselaw Access Project

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    State of Connecticut v. Angel L. Rodriguez, Jr.
    (14212)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued March 24
    decision released July 28, 1992

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, were G. Douglas Nash, public defender, Beth Merkin, assistant public defender, and Donald Dakers, former public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, for the appellee (state).
   Borden, J.

The defendant, Angel L. Rodriguez, Jr., appeals to this court from the judgment of conviction, after a jury trial, of two counts of the crime of murder in violation of General Statutes § 53a-54a (a). The defendant claims that the trial court improperly: (1) denied his motions to suppress evidence seized pursuant to two separate search warrants; and (2) instructed the jury on a statutory alternative for conviction for which there was no supporting evidence. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On the afternoon of December 19, 1988, the defendant was shot in the leg by Hector Rivera on Elliot Street in New Haven. Prior to this incident, the defendant and Rivera had an ongoing feud concerning Rivera’s wife. As a result of the shooting, an arrest warrant was issued for Rivera but no arrest was ever made.

On the afternoon of February 19, 1989, Rivera and his brother encountered the defendant near the corner of Steven Street and Elliot Street in New Haven. Rivera chased the defendant and challenged him to a fight. The defendant left the scene. Later that evening the defendant met with two acquaintances, Joseph Ristorucci and Jose Ayala, and told them that he was going to shoot Rivera. The defendant then showed Ristorucci a .44 caliber pistol that he was carrying.

At approximately 9:45 p.m., the defendant, who was driving a 1981 brown Datsun station wagon on Spring Street in West Haven, pulled alongside a vehicle occupied by Rivera and Gilberto Rodriguez, and fatally shot both occupants. At approximately 11 p.m., the defendant returned home and told his girlfriend that he had shot Rivera and the other occupant of the vehicle.

The state, in two separate informations, charged the defendant with murder, alleging that he, “with intent to cause the death of another, shot Hector Rivera and thereby caused his death,” and “with intent to cause the death of another, shot Gilberto Rodriguez, and thereby caused his death.” The defendant filed two motions to suppress certain evidence seized pursuant to two search warrants. The trial court denied both motions. The defendant also excepted to the trial court’s instruction to the jury that the state must prove beyond a reasonable doubt that “the person causing the death of another must have done so with the intent to cause death. Either that of the victim or of a third person.” The jury returned guilty verdicts on both informations and the court rendered one judgment on the informations. This appeal followed.

I

The defendant first claims that the trial court improperly denied his motion to suppress the evidence seized from a Mazda automobile pursuant to a search warrant dated February 22, 1989. Specifically, the defendant contends that probable cause did not exist to issue the warrant because the affidavit supporting the warrant did not adequately set forth the police informants’ bases of knowledge or reliability. We disagree.

The following facts are relevant to this claim. West Haven police presented to a judge of the Superior Court a warrant application to search an unregistered reddish-brown 1979 Mazda RX 7. After providing background information on the investigation of the murders, the affidavit stated that the affiants, who were police officers, “along with other members of the Homicide Investigation Unit, developed one Angel Rodriguez, Jr., as a suspect. Information developed by the unit revealed that Mr. Rodriguez, Jr., is involved in the narcotics trade in the same geographical area as that used by Hector Rivera. That said unit was able to develop information regarding the rivalry between Rodriguez and Rivera and that on Dec. 19, 1988, one Hector Rivera did shoot Angel Rodriguez, Jr., in his left leg, in an apparent dispute. This was confirmed by New Haven Police Department investigation, which resulted in the acquisition of an arrest warrant for Rivera.” Additionally, the affidavit stated that “several informants, who have given information to police officers in the past involving narcotic[s] related cases, which have [led] to arrests and convictions in a State Court of Law, related to the undersigned that Mr. Rodriguez has made overt physical threats toward Mr. Rivera for retribution for the aforementioned assault.” The affidavit then related that informants had stated that the defendant had been seen in possession of a large caliber revolver within four hours prior to the murders, and that forensic evidence showed that the victims had been shot with large caliber bullets.

The affidavit further stated that the defendant had admitted that he owned an unregistered 1979 Mazda RX 7 that was parked in front of his residence. The affidavit stated that on the floor in front of the Mazda front passenger seat, in plain view of the officers, was a jacketed .44 caliber round of ammunition.

A

Before we determine whether probable cause existed to issue the warrant, we first address the state’s claim that the defendant was not entitled to challenge the search of the Mazda. The state, contending that the defendant did not own the Mazda, maintains that he consequently had no “legitimate expectation of privacy” in its contents, and thus could not challenge its search.

To receive fourth amendment protection against unreasonable searches and seizures, a defendant must have a legitimate expectation of privacy in the invaded area. Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring); State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, U.S., 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991). “Absent such an expectation, the subsequent police action has no constitutional ramifications.” State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). The determination of whether the defendant had a reasonable expectation of privacy in the area searched requires a two part factual inquiry: first, whether the defendant has exhibited an actual subjective expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable. State v. Mooney, supra.

In the present case, the record establishes that the defendant exhibited a subjective expectation of privacy in the Mazda. The warrant affidavit stated that the defendant had claimed ownership of the Mazda, that the vehicle was parked in front of his residence when the police came to interview him, that the defendant knew the vehicle was not currently operable, and that he had joked that he would pay the police officers $100 to repair the vehicle. Thus, the defendant exhibited a significant degree of possession of and control over the automobile. Under these circumstances, the defendant exhibited the necessary subjective expectation of privacy.

Whether the defendant “possessed a reasonable expectation of privacy in the automobile requires a factual inquiry into all the relevant circumstances surrounding its [search].” State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989). This court has held repeatedly that the owner of an automobile may challenge a police search of its contents. State v. Altrui, 188 Conn. 161, 178-79, 448 A.2d 837 (1982); State v. Darwin, 161 Conn. 413, 419-20, 288 A.2d 422 (1971). Even individuals who do not legally own an automobile may be entitled to challenge its search. See State v. Darwin, supra, 420 (husband may challenge search of wife’s car); see also United States v. Garcia, 897 F.2d 1413, 1418 (7th Cir. 1990) (“[i]f an individual has the owner’s permission to use [the automobile], society surely recognizes this [expectation of privacy] as reasonable”); compare State v. Pittman, supra, 601-602 (husband not entitled to challenge search of car of murdered wife because he had surrendered possession, keys and access to vehicle).

In the present case, the warrant affidavit stated that the defendant had told the police that he owned the unregistered Mazda. The officers relied on that statement to support their application for a warrant. Furthermore, the state has not established that the defendant did not own the Mazda. As previously noted, the vehicle was parked in front of the defendant’s residence, and the defendant’s statements regarding its condition and need for repair provided additional indicia of ownership. Given these facts, we cannot conclude that the defendant was not the owner of the vehicle. Under these circumstances, we conclude that the defendant’s ownership of the Mazda rendered his expectation of privacy therein reasonable. United States v. Rubio-Rivera, 917 F.2d 1271, 1275 (10th Cir. 1990) (defendant not required to show documentary proof of ownership or lawful custody of the vehicle); United States v. Arango, 912 F.2d 441, 446 n.2 (10th Cir. 1990) (same).

B

We next consider the validity of the search warrant. In the present case, the necessary inquiry is whether there was probable cause to believe that the defendant had shot the victims and that evidence of the crime would be found in the place to be searched. The determination of whether probable cause exists to issue a search warrant under article first, § 7 of our state constitution, and under the fourth amendment to the federal constitution, is made pursuant to a “totality of the circumstances” test. State v. Barton, 219 Conn. 529, 544, 594 A.2d 917 (1991); Illinois v. Gates, 462 U.S. 213, 231-32 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983). Under this test, in determining the existence of probable cause to search, the issuing judge must make a “practical, nontechnical decision whether, given all the circumstances set forth in the warrant affidavit, including the ‘veracity’ and the ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Johnson, 219 Conn. 557, 563, 594 A.2d 933 (1991).

If a search warrant affidavit is based on information provided to the police by a confidential informant, the issuing judge “should examine the affidavit to determine whether it adequately describes both the factual basis of the informant’s knowledge and the basis on which the police have determined that the information is reliable. If the warrant affidavit fails to state in specific terms how the informant gained his knowledge or why the police believe the information to be trustworthy, however, the magistrate can also consider all the circumstances set forth in the affidavit to determine whether, despite these deficiencies, other objective indicia of reliability reasonably establish that probable cause to search exists. In making this determination, the magistrate is entitled to draw reasonable inferences from the facts presented. When a magistrate has determined that the warrant affidavit presents sufficient objective indicia of reliability to justify a search and has issued a warrant, a court reviewing that warrant at a subsequent suppression hearing should defer to the reasonable inferences drawn by the magistrate.” State v. Barton, supra, 544-45.

In the present case, the defendant claims that the absence of specific references to the informants’ reliability or bases of knowledge in the affidavit established only “mere suspicion” rather than the constitutional requirement of probable cause. Under the “totality of the circumstances” analysis set forth in State v. Bar ton, supra, and Illinois v. Gates, supra, however, we conclude that the affidavit established probable cause.

Initially, we disagree with the defendant’s contention that the affidavit made no reference to the informants’ reliability. The affidavit stated that the informants who had given information to the police regarding the threats made by the defendant toward Rivera had also given information in prior cases that had led to arrests and convictions. If an informant has a track record of providing reliable information, the issuing judge may credit the information given in the present case. State v. Morrill, 205 Conn. 560, 567, 534 A.2d 1165 (1987); State v. Romano, 165 Conn. 239, 244, 332 A.2d 64 (1973); see also 1 W. LaFave, Search and Seizure (1987) § 3.3 (b) (to establish informant’s reliability affiant need not detail specific instances in which informant provided reliable information). Thus, the issuing judge in the present case reasonably could have concluded that the information regarding the defendant’s rivalry with Rivera was reliable.

Furthermore, statements made by an informant are entitled to greater weight if corroborated by evidence independently gathered by the police. State v. Ruscoe, 212 Conn. 223, 230-31, 563 A.2d 267 (1989), cert. denied, 493 U.S. 1084, 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Ross, 194 Conn. 447, 465-66, 481 A.2d 730 (1984); State v. Delmonaco, 194 Conn. 331, 338, 481 A.2d 40, cert. denied, 469 U.S. 1036, 105 S. Ct. 511, 83 L. Ed. 2d 401 (1984); State v. Daley, 189 Conn. 717, 721-24, 458 A.2d 1147 (1983); State v. Just, 185 Conn. 339, 361, 441 A.2d 98 (1981); see Illinois v. Gates, supra, 242-43; Jones v. United States, 362 U.S. 257, 269, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960); United States v. Canestri, 518 F.2d 269, 272 (2d Cir. 1975). “ 'If the police have evidence (such as from prior independent police work), which corroborates some of the details included in the affidavit, then an inference of reliability will rise. . . .’ ” State v. Just, supra, 361; Spinelli v. United States, 393 U.S. 410, 417-18, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969). In the present case, the information received from the informants regarding the rivalry between the defendant and Rivera had been substantially corroborated by the West Haven police department’s investigation of the 1988 shooting of the defendant and the resulting arrest warrant for Rivera. This corroborating evidence supported the reliability of the informants’ statements that the defendant had made overt threats toward Rivera regarding retribution for the prior assault.

Additionally, the police “were able to develop information regarding Rodriguez whereby he was observed to be in possession of a large caliber revolver, within 4 hours prior to the commission of these homicides.” Although the affidavit did not provide the particular source of this information, or the name of the informant from which it came, this statement was substantially corroborated by the police officers who observed large caliber ammunition in plain view on the floor of the Mazda, and by forensic evidence that the murders were committed with a large caliber handgun. Under these circumstances, the issuing judge was entitled to give the information linking the defendant to such a gun four hours prior to the murders some credibility.

In sum, the informants’ statements, as corroborated by the track record of the informants and by other extrinsic evidence, provided a substantial basis for the issuing judge to conclude that such information was reliable. Therefore, under the “totality of the circumstances” test enunciated in State v. Barton, supra, and Illinois v. Gates, supra, we conclude that the issuing judge had probable cause to believe that the defendant had shot the victims and that the Mazda contained evidence related to the murders.

II

The defendant next claims that the trial court improperly denied his motion to suppress the evidence seized pursuant to a search warrant for a Datsun station wagon. The defendant contends that probable cause did not exist to issue the warrant because the affidavit supporting the warrant did not adequately set forth the police informant’s basis of knowledge or reliability.

The following facts are relevant to this claim. West Haven police officers presented to a judge of the Superior Court a warrant application, dated May 8, 1989, to seize a brown 1981 Datsun station wagon that was located in the rear yard of a used car lot in New Haven. After setting forth the relevant background to the murders and the police investigation, the affidavit stated that two eyewitnesses to the shooting had “observed apparent muzzle flashes as a firearm was being discharged out of the passenger side of a motor vehicle which [was] travelling in the same direction [as] the [victim’s car] on its left hand side.” The affidavit stated that the witnesses had described the vehicle “as being small in size, with a hatchback type rear window, and the vehicle’s body color to be tan.”

The affidavit regarding the Datsun recounted the rivalry between the defendant and Rivera that had culminated in the shooting of the defendant and the subsequent arrest warrant for Rivera. The affidavit also recounted the defendant’s possession of a large caliber handgun'four hours prior to the murders and the forensic evidence demonstrating that the victims had been shot with a large caliber handgun. The affidavit then stated that the defendant had been arrested on two counts of murder on March 8, 1989, in connection with the shooting of Rivera and Gilberto Rodriguez, and that a trial date had been set.

Finally, the affidavit contained the following passage: “That on May 8, 1989 a Hector Estrada of 29 Greenwood Street, New Haven, did contact this Police Department and advised that the car Angel Rodriguez, Jr., used in the homicide was presently in the rear yard of Cestaro & Sons, Inc. Used Car Lot at 477 Ferry Street, New Haven. That upon receiving this information the above mentioned officers did go to Cestaro & Sons, Inc., 477 Ferry Street, New Haven. That upon checking rear lot we did observe a 1981 Datsun Station Wagon color brown. That upon speaking with the owner, Pasquale Cestaro, about this car he advised that Angel dropped it off some time ago. Upon speaking to another employee he stated that Angel dropped off car about nine to ten weeks ago. That [upon] closer examination of this vehicle it does fit the description of several of the witnesses that we have interviewed.”

A

The defendant contends that the absence in the affidavit of specific references to the informant’s reliability or basis of knowledge establishes only “mere suspicion” rather than the constitutional requirement of probable cause. We conclude, however, that the affidavit established probable cause.

We first note that the affidavit established probable cause to believe that the defendant had committed the murders. The warrant affidavit plainly stated that, at a hearing held pursuant to General Statutes § 54-46a, a Superior Court judge had determined that there was probable cause to believe that the defendant had committed the murders. From this prior probable cause determination, combined with other evidence in the warrant that established the defendant’s motive and that factually linked the defendant to the murders, the issuing judge had probable cause to believe that the defendant had shot the victims. Thus, the primary question for the issuing judge to determine was whether the affidavit supporting the warrant established probable cause to believe that the 1981 Datsun contained evidence related to the murders or had been used in the commission of the offense. We conclude that the affidavit adequately established probable cause.

First, the warrant affidavit contained a statement by Hector Estrada that the vehicle that had been used during the homicides was parked in a used car lot. Although the affidavit did not set forth Estrada’s particular basis of knowledge or reliability, his information was corroborated by the fact that the police found the brown 1981 Datsun at Cestaro and Sons. The issuing judge, therefore, was entitled to conclude that Estrada was a reliable informant. State v. Ruscoe, supra, 230-31. Additionally, from these facts, the magistrate reasonably could have inferred that Estrada had given the police a physical description of the vehicle and, thus, the magistrate reasonably could have found an additional indicia of the reliability of Estrada’s information. State v. Barton, supra, 544-45 (“a court reviewing that warrant . . . should defer to the reasonable inferences drawn by the magistrate”). Although Estrada’s basis of knowledge was not clear from the face of the affidavit, a deficiency in the “basis of knowledge” prong may be overcome by a strong showing of the informant’s reliability. Illinois v. Gates, supra, 233.

Second, the warrant also stated that two eyewitnesses to the shootings had described the vehicle as “small in size, with a hatchback type rear window, and the vehicle’s body color to be tan.” Although the names of these witnesses were not set forth in the affidavit, the issuing judge reasonably could have concluded that the two parties were citizen informants rather than unnamed police informants because the context of the affidavit indicates that they were operating their vehicle on the same street and at the same time as the shooting. Thus, the police were not obligated to make an additional showing as to the reliability of those witnesses. State v. Daley, supra, 724. Furthermore, because the information was received from witnesses who had personally observed the murders, the issuing judge was entitled to conclude that such statements were entitled to greater reliability. Illinois v. Gates, supra, 232-34. Additionally, the description given by the two eyewitnesses substantially conformed to the actual physical characteristics of the Datsun named in the warrant. The issuing judge reasonably could have concluded that the two eyewitnesses’ statements warranted independent weight and were corroborative of Hector Estrada’s statements.

Finally, the affidavit stated that both the owner and an employee of Cestaro and Sons had told the police that “Angel” had left the car at his lot. This information directly linked the defendant to the vehicle, and was entitled to substantial credence because both individuals were citizen informants. State v. Daley, supra. The issuing judge reasonably could have inferred that the vehicle was owned by the defendant, and because there was probable cause to believe that the defendant had committed the drive-by shooting, it was also likely that he had used his own automobile to commit the offense. Additionally, the employee stated that “Angel” had left the car nine to ten weeks prior to May 8,1989, that is, within approximately one or two weeks after the murders. From this information, the issuing judge reasonably could have inferred that the defendant had attempted to secrete the vehicle approximately one or two weeks after the murders, and that the vehicle had been used in the shootings. Considering all the information presented in the affidavit, therefore, under the totality of the circumstances, the issuing judge had probable cause to believe that the 1981 Datsun had been used in the commission of the murders.

B

The defendant next claims that even if probable cause existed within the “four corners” of the warrant, the trial court improperly denied the defendant’s motion for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), because the warrant affidavit contained a material misstatement and two material omissions. We disagree.

In Franks v. Delaware, supra, 155-56, the United States Supreme Court held that if a defendant makes a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request.” See also State v. Weinberg, 215 Conn. 231, 237, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Bergin, 214 Conn. 657, 666, 574 A.2d 164 (1990); State v. Ruscoe, supra, 232. Cases subsequent to Franks have extended the rule to include material omissions from the affidavit. See State v. Weinberg, supra; State v. Bergin, supra. As the United States Supreme Court noted in Franks, “[t]here is, of course, a presumption of validity with respect to the affidavit supporting the search warrant. To mandate an evidentiary hearing, the challenger’s attack must be more than conclusory .... There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.” Franks v. Delaware, supra, 171.

In the present case, the defendant first claims that the affidavit supporting the warrant for the Datsun contained a material misstatement. The defendant contends that the paragraph in the affidavit that set forth the information provided by Hector Estrada necessarily misled the issuing judge into believing that Hector Estrada had personally witnessed the homicides. We discern, however, no language in this paragraph that constitutes such a misstatement. The language of the affidavit simply stated that Estrada had “advised” the police that the car the defendant had used in committing the homicides could be found at Cestaro and Sons. Nowhere in the paragraph do the affiants state that Estrada had witnessed the homicides. Indeed, the issuing judge reasonably could have inferred that Estrada had not witnessed the shootings because the officers would have been likely to include such information in the affidavit to support a showing of Estrada’s basis of knowledge.

The defendant also claims that the affidavit omitted material information provided to the police by a witness who had observed a vehicle leaving the scene of the shooting. In his statement to the police, this witness testified that he was lying on his couch in his apartment on Spring Street when he heard shots. As he was getting up from the couch to look out the window, he heard “a car speeding away.” He stated that when he reached the window, he saw a brown Ford LTD alongside the victims’ vehicle.

As we noted in State v. Bergin, supra, 666, not all omissions, even if intentional, give rise to the right to a Franks hearing. Accordingly, “an affiant may omit facts that he believes to be either immaterial or unsubstantiated.” Id. Thus, we have held that, in order to be entitled to a Franks hearing, a defendant must make a “substantial preliminary showing that the information was (1) omitted with the intent to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing judge, and (2) material to the determination of probable cause.” Id., 666-67; see also United States v. Colkley, 899 F.2d 297, 301 (4th Cir. 1990). The affiants reasonably could have believed that the statement of the witness was immaterial or unsubstantiated because, by the time the witness looked out the window, he had already heard a vehicle speed away, and therefore had not seen the vehicle from which the shots were fired. Thus, the affiants’ failure to include in the affidavit this statement of questionable reliability cannot be characterized as having been either a deliberate attempt to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing magistrate. See United States v. Colkley, supra (trial court could not have inferred intent or recklessness from the omission itself; such inferences warranted only if omitted material clearly is critical to finding of probable cause).

Finally, the defendant claims that the affiants materially omitted an eyewitness report from three children playing basketball near the scene of the murders. The children told police officers at the scene that they had heard shots and then had run out to the street to see what had happened. The children claimed that they had seen a white 260z or 280z Datsun next to the victims’ vehicle. Again, the affiants reasonably could have believed that the children arrived too late to view the vehicle from which the shots had been fired, and thus it was not necessary to include their statement in the affidavit. We also cannot characterize this omission as either a deliberate attempt to make, or in reckless disregard of whether it made, the affidavit misleading to the issuing magistrate. We conclude, therefore, that the trial court properly denied the defendant’s motion for a Franks hearing.

III

The defendant’s final claim is that the trial court improperly instructed the jury on a statutory alternative for a conviction for which there was no supporting evidence. We disagree.

The following facts are relevant to this claim. At trial, the state introduced substantial evidence establishing the defendant’s motive and intent to kill Rivera. Numerous witnesses and forensic evidence established that at least four shots were fired at both victims from close range. The jury heard testimony from the defendant’s girlfriend and from a jailhouse informant from which it reasonably could have inferred that the defendant had shot Gilberto Rodriguez in order to prevent Rodriguez from testifying to the shooting of Rivera. The defendant also told the jailhouse informant that one of the bullets passed through the head of Rivera and struck Gilberto Rodriguez.

The court instructed the jury that to convict the defendant of murder the state must prove beyond a reasonable doubt that “the person causing the death of another person must have done so with the intent to cause death. Either that of the victim or of a third person. In other words, if ‘A’ intending to cause the death of ‘B,’ for instance, and by way of an example, should put an explosive [device] in ‘B’s’ car and ‘C’ is killed as a result, then the defendant is still guilty of murder.” The defendant excepted to this instruction.

The defendant claims that this instruction was improper because there was no evidence sufficient to establish guilt under each statutory alternative. In reviewing a sufficiency of the evidence claim, the dis-positive question is whether, viewing the evidence in the light most favorable to sustaining the verdict, the trier of fact reasonably could have concluded, from the facts established and the inferences reasonably drawn therefrom, that the cumulative effect of the evidence established guilt beyond a reasonable doubt. State v. Famiglietti, 219 Conn. 605, 609, 595 A.2d 306 (1991); State v. Montanez, 219 Conn. 16, 19, 592 A.2d 149 (1991). We also have held that if “ ‘a person may have been convicted under more than one statutory alternative, the judgment cannot be supported unless the evidence was sufficient to establish guilt under each statutory provision which the trier may have relied upon.’ ” State v. Williams, 202 Conn. 349, 363, 541 A.2d 150 (1987); State v. Thompson, 197 Conn. 67, 74, 495 A.2d 1054 (1985); State v. Asherman, 193 Conn. 695, 730, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985); State v. Marino, 190 Conn. 639, 650-51, 462 A.2d 1021 (1983).

In the present case, the defendant contends that for the charge to have been proper the state was required to introduce evidence tending to establish that: (1) with the intent to cause the death of Hector Rivera, the defendant had caused the death of Gilberto Rodriguez; and (2) with the intent to cause the death of Gilberto Rodriguez, the defendant caused the death of Hector Rivera. Upon full review of the record, we find that the state met this burden.

The jury reasonably could have inferred that the defendant had the requisite intent to kill both Rivera and Gilberto Rodriguez. The jury heard extensive testimony recounting Hector Rivera’s prior shooting of the defendant and their ongoing rivalry. The jury also heard testimony from the defendant’s girlfriend and a jailhouse informant from which it could have inferred that the defendant had shot Rodriguez because he had been a witness to the shooting. The jury also reasonably could have found that, given the close proximity of the defendant and the victims during the shooting, the angle at which the defendant fired the shots and the number of shots fired, in the defendant’s attempt to shoot Rivera a bullet also struck Gilberto Rodriguez. Similarly, the jury reasonably could have found that in the defendant’s attempt to shoot Gilberto Rodriguez a bullet also struck Hector Rivera. Thus, there was sufficient evidence to convict the defendant on both of the statutory alternatives. Because sufficient evidence was introduced for each statutory alternative, the jury charge was proper.

The judgment is affirmed.

In this opinion Peters, C. J., Callahan and Glass, Js., concurred.

Berdon, J.,

dissenting in part and concurring in part. This case demonstrates how the adoption in State v. Barton, 219 Conn. 519, 594 A.2d 917 (1991), of the “totality of the circumstances” standard of Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527, reh. denied, 463 U.S. 1237, 104 S. Ct. 33, 77 L. Ed. 2d 1453 (1983), has undermined the safeguards of the search and seizure clause in our state constitution. Conn. Const., art. I, § 7; see also State v. Santiago, 223 Conn. 906, 610 A.2d 179 (1992) (Berdon, J., dissenting from denial of certification). Indeed, the right to be secure from unreasonable searches and seizures disappears when the majority superimposes on Barton its “reasonable inference” rule, which amounts to the supplying of vital information by inference to support probable cause in an affidavit where, in fact, the underlying facts upon which the claimed inferences rest are mere shadows in the dark. The combination of these two standards—the totality of the circumstances and the unwarranted inference—spells disaster for the constitutional protection against warrants issued without probable cause.

The majority in part II of its opinion holds that, on the basis of information supplied by a Hector Estrada, there was sufficient probable cause for the issuing magistrate to believe that the defendant’s 1981 Datsun had been used in the crime and, therefore, to issue the search warrant for the car. There was, however, no indication of who Estrada was, or equally important, his basis of knowledge that the Datsun was the car the defendant had used in the homicide. The majority compensates for this gaping hole in the warrant application by highlighting that the supporting affidavit stated that “two eyewitnesses” to the shooting had “observed apparent muzzle flashes” from a car similar to that of the defendant’s Datsun. Then, apparently to compensate for the complete lack of information in the affidavit about the “two eyewitnesses,” the majority concludes that the magistrate could have inferred “that the two parties were citizen informants rather than unnamed police informants because the context of the affidavit indicates that they were operating their vehicle on the same street and at the same time as the shooting.” I was not aware that “unnamed police informants” are incapable of “operating their vehicle[s] on the same street and at the same time as [a] shooting.” What the majority is doing, in effect, is rewriting the affidavit to add supporting facts not contained therein.

Even under Illinois v. Gates, the affidavit in this case could not pass constitutional muster. As the majority of this court acknowledged in Barton, the United States Supreme Court did not entirely abandon the “two pronged” Aguilar-Spinelli test—that is, the informant’s “veracity” or “reliability” and his or her “basis of knowledge.” The majority in Barton, recognized that “[i]n Gates, the Supreme Court reaffirmed that the ‘veracity’ or ‘reliability’ and the ‘basis of knowledge’ inquiries formulated in Aguilar remain ‘highly relevant’ in the determination of probable cause and should be regarded as ‘closely intertwined issues that may usefully illuminate the common-sense, practical question’ of the existence of probable cause to believe that contraband or evidence is located in a particular place. Illinois v. Gates, supra, 230. The Gates court abandoned only a ‘rigid compartmentalization’ of the inquiries and denied that the court had ever intended them to be understood as ‘entirely separate and independent requirements to be rigidly exacted in every case.’ Id.” State v. Barton, supra, 537. Accordingly, there must exist some information upon which the informant based his knowledge, otherwise the magistrate surrenders his responsibilities to the police officer’s determination.

In the present case, although the majority claims that Estrada’s “basis of knowledge was not clear,” the fact is, the basis of his knowledge was nonexistent. State v. Cofield, 220 Conn. 38, 46, 595 A.2d 1349 (1991) (the court “made clear in Barton that the informant’s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ remain ‘highly relevant’ ”). Indeed, there is nothing in Gates that would support a finding of probable cause when the affidavit fails to supply any evidence as to the basis of the informant’s knowledge. Illinois v. Gates, supra, 233.

It is important to remember what Justice Brennan wrote in his dissent in Gates. “Everyone shares the Court’s concern over the horrors of [crime], but under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure this evil. We must be ever mindful of Justice Stewart’s admonition in Coolidge v. New Hampshire, 403 U.S. 443, [445, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971)]: In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or extravagant to some. But the values were those of the authors of our fundamental constitutional concepts. ... In the same vein, Glasser v. United States, 315 U.S. 60, [86, 62 S. Ct. 457, 86 L. Ed. 680 (1942)], warned that [s]teps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties. . . .

“Rights secured by the Fourth Amendment are particularly difficult to protect because their advocates are usually criminals. Draper v. United States, [358 U.S. 307, 314, 79 S. Ct. 329, 3 L. Ed. 2d 327 (1959)] (Douglas, J., dissenting). But the rules we fashion [are] for the innocent and guilty alike. Ibid. See also Kolender v. Lawson, [461 U.S. 352, 362 n.1, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983)] (Brennan, J., concurring); Brinegar v. United States, [338 U.S. 160, 181, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949)] (Jackson, J., dissenting). By replacing Aguilar and Spinelli with a test that provides no assurance that [the] magistrates, rather than the police, or informants, will make determinations of probable cause; imposes no structure on magistrates’ probable-cause inquiries; and invites the possibility that intrusions may be justified on less than reliable information from an honest or credible person, today’s decision threatens to obliterate one of the most fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law. Johnson v. United States, [333 U.S. 10, 17, 68 S. Ct. 367, 92 L. Ed. 436 (1948)].” (Internal quotation marks omitted.) Illinois v. Gates, supra, 290-91.

Instead of requiring the magistrate, the protector of our constitutional right to privacy, to determine whether probable cause exists to issue the warrant, we grant him or her the authority merely to rubber stamp the decision of the police. It is alarming to think that the police can make the ultimate determination of when our right to privacy ends. Now, if probable cause is not found by the totality of the circumstances standard, it will be supplied by creating unfounded inferences.

I dissent as to part II, which finds there was probable cause as to the search warrant for the Datsun; accordingly, I would reverse the defendant’s conviction and remand the case for a new trial. I concur only in the result in part I and concur in part III.

       The defendant appealed pursuant to General Statutes § 51-199 (b) (3), which provides: “The following matters shall be taken directly to the supreme court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years.”

       General Statutes § 53a-54a provides in pertinent part: “murder, (a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       Pursuant to a warrant to search a Mazda automobile, the West Haven police seized four .44 caliber hollow-point bullets from the floor of the vehicle. This evidence was introduced at trial because the bullets displayed similar characteristics to the bullets taken from the victims’ bodies.
      Pursuant to a warrant to search a Datsun automobile, the West Haven police seized cigarette butts, glass shards and a gunpowder particulate from the vehicle. A saliva sample taken from the cigarette butts was introduced at trial to link the defendant to the Datsun. The glass shards were also introduced because they displayed characteristics similar to the shattered glass taken from the victims’ vehicle. Finally, the gunpowder particulate was introduced to demonstrate that a firearm had been discharged in the vehicle.

       The state did not raise in the trial court, and thus the trial court did not address, the issue of whether the defendant was entitled to challenge the validity of the warrant. For the purposes of the motion to suppress, the trial court proceeded immediately to the issue of whether the warrant was valid on its “four comers.” Thus, the state has raised the claim of a lack of reasonable expectation of privacy for the first time in this court. Because we conclude that the defendant was entitled to challenge the validity of the warrant, we need not decide whether the state waived this claim.

       The state predicates its claim of a lack of ownership of the vehicle on the antecedent claim that the defendant lacked legal title to the vehicle. This claim is, in turn, based on the following statement in the warrant affidavit: “[T]he undersigned then accessed records of the Department of Motor Vehicles and found that the last known owner of said vehicle resided in Newington, Connecticut and that the vehicle was listed as a 1979 Mazda RX7 color brown. That the transfer date of said vehicle was noted as April 14, 1988, the time at which the last known owner relinquished ownership.” The lack of department of motor vehicle records, however, does not conclusively establish lack of ownership. An owner of a motor vehicle is “any person holding title to a motor vehicle, or having the legal right to register the same, including purchasers under conditional bills of sale.” General Statutes § 14-1 (a) (56). Furthermore, it stands to reason that an unregistered automobile may be owned by someone, despite the lack of formal documentation of ownership.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

       The record reveals that, in fact, it was Angel Rodriguez, Sr., the defendant’s father, and not the defendant, who had left the Datsun at Cestaro and Sons. The defendant did not raise this discrepancy in the warrant before the trial court as part of his challenge to the sufficiency of the warrant to search the Datsun or as part of his claim for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The defendant’s brief raises this factual issue only to establish that there was a sufficient connection between the defendant and the Datsun to have entitled him to challenge its search.

       The trial court denied the defendant’s motion to suppress on the ground that the defendant did not have a reasonable expectation of privacy in the Datsun. We assume, without deciding, that the defendant had an expectation of privacy in the Datsun sufficient to entitle him to challenge the search.

       General Statutes § 54-46a provides in pertinent part: “probable cause HEARING FOR PERSONS CHARGED WITH CRIMES PUNISHABLE BY DEATH OR LIFE imprisonment, (a) No person charged by the state . . . shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause to believe that the offense charged has been committed and that the accused person has committed it. . . .”

       An additional demonstration of a citizen informant’s reliability is not necessary because such individuals do not expect any gain or concession in exchange for the information they give to the police. Additionally, citizen informers usually do not supply information to the police more than once, thereby precluding proof of past instances of reliability. See 1 W. LaFave, Search and Seizure (1987) § 3.4 (a).

       In connection with this claim, the defendant contends that information provided to the authorities by Hector Estrada led the West Haven police to procure a warrant to search a yellow 1978 Datsun, and that the affidavit supporting the warrant application to search the 1981 Datsun failed to disclose the issuance of the prior warrant. We have never held, however, that probable cause to search one place defeats probable cause to search another. See State v. Couture, 194 Conn. 530, 540-44, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985).

       The instruction at issue in each of the cases cited above involved different subsections of the particular statute upon which the judge based the instruction. In the present case, we assume, without deciding, that the statutory alternative analysis set forth in State v. Williams, 202 Conn. 349, 863-64, 541 A.2d 150 (1987), applies to alternative language occurring within the same statutory subsection. See, e.g., State v. Reyes, 19 Conn. App. 179, 191, 562 A.2d 27 (1989).

        Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).


author: Berdon, J.

text:
    Dianne Fellows v. Marjorie Martin
    (14457)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.
    Argued May 5
    decision released July 28, 1992

      Patrick L. Kennedy, for the appellant (plaintiff).

      Joel M. Ellis, for the appellee (defendant).
   Berdon, J.

This appeal stems from an earlier appeal of a summary process action wherein this court reversed a judgment of possession in favor of the plaintiff landlord, Dianne Fellows, and remanded the case to the trial court for further proceedings. Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991). The sole issue in this appeal is whether the trial court properly complied with this court’s remand order by rendering judgment in favor of the defendant tenant, Marjorie Martin. We affirm.

Because the facts of this case are set forth in Fellows v. Martin, supra, we will discuss only those facts necessary for a determination of this issue. In June, 1988, the plaintiff brought a summary process action against the defendant seeking possession of the leased premises for nonpayment of rent. The trial court rendered judgment of possession in favor of the plaintiff and the defendant took an appeal, which we transferred to this court. In Fellows v. Martin, the majority of this court held that “there is no longer sufficient justification for the old prohibition against the application of equitable principles barring forfeitures to summary process . . . and that equitable defenses and counterclaims implicating that right to possession are available in a summary process proceeding.” Id., 62. We, therefore, reversed the judgment of possession on the ground that the defendant’s withholding of a minimum amount of rent over a good faith dispute was insufficient, as a matter of equity, to justify a forfeiture.

We issued the following remand to the trial court: “Because the trial court could not reasonably have failed to grant equitable relief to the tenant by relieving her from forfeiture of the lease, we reverse the judgment of possession on the complaint, but remand for further proceedings regarding the amount due the landlord. We affirm the dismissal of the counterclaim to the extent that it claimed damages, because its prayers for monetary relief did not implicate the right to possession.” Id., 69-70.

On remand, the trial court determined that the defendant owed the plaintiff $50.02. Upon the defendant’s payment of this amount, the trial court rendered judgment for her. The plaintiff appealed that judgment to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

The plaintiff now argues that this court’s remand directed the trial court to render a judgment in her favor after the court made a determination of the amount owed. Conversely, the defendant argues that the rendering of judgment of $50.02 was done as part of an award of equitable relief in favor of the defendant. The defendant claims that “[s]uch a decree, in effect, would condition the defendant’s relief against the plaintiff rather than constitute an award to [the] plaintiff against the defendant under the complaint.” We agree with the defendant.

Upon review, we conclude that the remand was not sufficiently precise to guide the trial court. The remand should have ordered the trial court to render judgment for the defendant conditioned upon the payment of the amount found due by the trial court, that is, $50.02. If the defendant failed to pay that amount within a reasonable time, then it would have been appropriate for the trial court to have rendered judgment of possession for the plaintiff. The judgment of the trial court fully complied with the mandate as we have now articulated it.

The judgment is affirmed.

In this opinion the other justices concurred.

       The defendant filed a motion in this court seeking the dismissal of the plaintiff’s appeal on the ground that it is moot because the defendant tendered the amount owed to the plaintiff. We denied that motion by an order dated February 5, 1992. In her brief, the defendant reasserts her mootness claim. We find this claim to be without merit because a legitimate question exists for our determination about the terms of this court’s mandate and the trial court’s compliance with that mandate on remand.
      Also, the defendant and the plaintiff filed motions for sanctions. In their respective motions, the defendant asserts that the present appeal is frivolous while the plaintiff argues that the defendant’s motion for sanctions is frivolous. Because we conclude that there exists a legitimate question for this court’s consideration, the appeal is not frivolous and, therefore, the defendant’s motion is denied. Moreover, we conclude that the plaintiff’s motion for sanctions is without merit and, therefore, it is denied.


author: Borden, J.

text:
    Robert L. Walton et al. v. Town of New Hartford et al.
    (14318)
    Callahan, Glass, Covello, Borden and Berdon, Js.

      Argued April 3
    decision released July 28, 1992

      Robert K. Wynne, for the appellants (third party defendants).

      Steven B. Kaplan, for the appellees-cross appellants (plaintiffs).

      Robert E. Pace, for the appellees (defendants-third party plaintiffs).

      John W. Pickard, for the cross appellee (defendant town of New Hartford).
   Borden, J.

This appeal arises from an amended complaint filed by the plaintiffs, Robert L. Walton and Linda M. Walton, against the defendants, the town of New Hartford (New Hartford) and Alan and Karen Habig (Habigs), alleging damage to the plaintiffs’ real property caused by water drainage, and from a third party complaint filed by the Habigs against the third party defendants, James A. and Joann K. Parsons (Parsons), seeking indemnification. The Parsons appeal from the judgment of the trial court rendered in favor of the Habigs on the Habigs’ third party complaint. The plaintiffs cross appeal from the trial court’s denial of the plaintiffs’ motion to open and modify the judgment of the trial court rendered in favor, in part, of the plaintiffs.

The Parsons claim that the trial court improperly: (1) concluded that the plaintiffs had granted to them a license, rather than an easement, over the plaintiffs’ property; and (2) granted the plaintiffs injunctive relief. In their cross appeal, the plaintiffs claim that the trial court improperly denied the plaintiffs’ motion to open and modify the judgment rendered, in part, in their favor. We affirm the trial court’s judgment.

The relevant facts are as follows. The plaintiffs own property known as lot 16 on Lair Road in New Hartford. The plaintiffs’ property is contiguous with and downhill from the Habigs’ property, known as lot 17 on Lair Road in New Hartford. The Habigs purchased their property from the Parsons. At the time the plaintiffs purchased their home, in March, 1986, substantial surface water drained onto the plaintiffs’ property from Lair Road and from two drainage pipes owned by New Hartford that were located on the plaintiffs’ property. At approximately the same time, James A. Parsons discovered a four inch diameter pipe that ran underneath his property. The pipe emptied water that had collected from curtain drains on the Parsons’ property onto the plaintiffs’ property. Parsons then informed the plaintiffs of the existence of the pipe.

After discussions with the Parsons and with New Hartford officials about ways to solve their water drainage problems, the plaintiffs decided to install an underground water drainage system on their property designed to divert water away from their septic system. The water drainage system was installed in August, 1986, and consisted of two long pipes connected to two catch basins that carried drainage water to the rear of the plaintiffs’ property. The first catch-basin was located approximately forty feet west of Lair Road. A thirty inch diameter pipe connected to that catch basin and ran northwesterly underground approximately ninety feet, connecting to a second catch basin located at the bottom of the plaintiffs’ driveway. A thirty-six inch diameter pipe connected to the second catch basin and ran in a northwest direction underground approximately 120 feet to the rear of the plaintiffs’ property. This pipe had a flared end and emptied the drainage water that collected from the various pipes connected to the drainage system directly onto the plaintiffs' property.

On September 10, 1986, shortly after the water drainage system was installed, the plaintiffs granted to New Hartford a written easement permitting the town to discharge water onto the plaintiffs’ property from its two drainage pipes. The easement required, inter alia, that New Hartford construct on the plaintiffs’ property the first catch basin into which the two pipes would connect, and maintain the catch basin and discharge system. The plaintiffs also agreed to allow the Parsons to connect, into the water drainage system, the pipe that ran underneath the Parsons’ property. This pipe connected into the plaintiffs’ second catch basin. Their agreement, however, was never reduced to writing.

On December 2, 1988, the plaintiffs notified the Parsons that since “[n]o written easement was granted [to the Parsons, they were to] . . . stop . . . directing the flow of water by pipe into [the plaintiffs’] . . . catchbasin.” The Parsons never responded to the letter. On December 19, 1988, the Parsons sold lot 17 to the Habigs without disclosing their dispute with the plaintiffs concerning the pipe. On September 22, 1989, the plaintiffs notified New Hartford that substantial erosion had occurred on the plaintiffs’ property due to the town’s failure to maintain the discharge system as required by the easement. The plaintiffs requested that New Hartford “cure the deficiency that exists in the drainage system” or they would terminate the easement. New Hartford did not respond.

Thereafter, the plaintiffs commenced this action against the defendants. In an amended thirteen count complaint, the plaintiffs alleged that New Hartford “breached its covenant to maintain the drainage system in accordance with the terms of the easement” and sought damages and injunctive relief. The plaintiffs further alleged that the Habigs were trespassing and committing a nuisance since the plaintiffs had requested the Habigs’ predecessors in title, the Parsons, to disconnect the pipe that discharged water onto their property. The plaintiffs also sought damages and injunctive relief from the Habigs. The Habigs filed a third party complaint against the Parsons alleging intentional and negligent misrepresentation by the Parsons for their failure to disclose to the Habigs the dispute over the pipe. They sought indemnification from the Parsons for any judgment rendered against the Habigs in favor of the plaintiffs.

The trial court rendered judgment in favor, in part, of the plaintiffs on the plaintiffs’ amended complaint against the Habigs and against New Hartford. The court further rendered judgment in favor of the Habigs on their third party complaint against the Parsons.

Regarding the plaintiffs’ allegations against New Hartford, the court concluded that “the plaintiffs have sustained their burden of proof that the Town of New Hartford has failed to properly maintain ‘the enclosed catchbasin and the discharge system. . . .’ ” The court then concluded that “the plaintiffs are entitled to an order directing the town to periodically, as necessary, clear the catchbasin on the plaintiffs’ property as well as that located on Lair Road which feeds into the easement pipes.”

Regarding the plaintiffs’ allegations against the Habigs, the court concluded that the plaintiffs granted to the Parsons a license to connect the pipe to the plaintiffs’ water drainage system, which was revocable at the plaintiffs’ will. The court then concluded that since the license had been revoked by a letter dated December 2, 1988, “Mr. and Mrs. Habig acquired no right to continue the tie-in to the [plaintiffs’] drainage system and they must therefore be enjoined from further use . . . and shall cease and desist the use of the pipe leading from their property ... to the property of [the plaintiffs] . . . .” Regarding the Habigs’ allegations against the Parsons, the court concluded that by failing to disclose to the Habigs the dispute over the drainage pipe, the Parsons had “misrepresented existing fact and thereby induced the Habigs to purchase [their] home. . . . Accordingly, [the Parsons] are liable to [the Habigs] on the . . . third party complaint . . . [and are required to indemnify] the Habigs for any judgment that may be rendered against them in favor of the plaintiffs.”

The Parsons appealed to the Appellate Court from the judgment rendered in favor of the Habigs on the third party complaint. The plaintiffs filed a cross appeal from the judgment rendered in their favor, in part; see footnote 8, supra; on their complaint. We transferred the appeal and cross appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c). We now affirm the trial court’s judgment.

I

In their appeal, the Parsons claim that the trial court improperly concluded that the plaintiffs had granted to the Parsons a license, rather than an easement, to use the plaintiffs’ property. We disagree.

The trial court made the following findings regarding this claim. “After the granting of the easement to the Town [of New Hartford] in September, 1986, the [plaintiffs] and the Parsons entered into discussion concerning a request by the Parsons to tie into the drainage line on the [plaintiffs’] property. While orally agreed to, the permission was never reduced to writing in the form of a valid easement. The right which the Parsons claim to have obtained was an interest in the [plaintiffs’] real estate and therefore within the [S]tatute of [F]rauds. . . . Foot v. New Haven and Northampton Company and Others, 23 Conn. 214, 223 [1854]. What they did receive was a license to lay a pipe and connect to the discharge system on the [plaintiffs’] property. Such a right may be obtained orally. Occum Co. v. A & W Sprague Mfg. Co., 34 Conn. 529 [1868]; Tiffany Real Property, Third Ed., Vol. III, § 830.

“Since the Parsons obtained only a license, it was revocable at the will of the [plaintiffs]. . . . ‘Generally, a license to enter premises is revocable at any time by the licensor. . . .’ State v. Grant, 6 Conn. App. 24, 29 [502 A.2d 945 (1986)]. ... In view of the fact that the license to the Parsons was revocable, it was not assignable to the Habigs. Prince v. Case, 10 Conn. 375 [1835]. Aside from this legal proposition, the license was revoked by letter dated December 2, 1988 from [the plaintiffs’] to [the Parsons]. . . . Accordingly, it is ordered that on or before June 1, 1991 the defendants Alan and Karen Habig shall cease and desist the use of the pipe leading from their property ... to the property of [the plaintiffs].”

The Parsons argue that the trial court did not apply the correct standard of law in this case because it concluded, as a matter of law, that an easement could not be created, under any circumstances, without a writing. Nowhere in the court’s decision, however, does the court conclude, as a matter of law, that an easement can never be created without a writing. Furthermore, there is nothing in the record to indicate that the court did not consider the appropriate principles of law governing easements in Connecticut. Indeed, the Parsons’ attorney directed the court’s attention to two Connecticut cases that have permitted the creation of an easement without a writing. Moreover, the trial court could reasonably have concluded that the parties did not intend to reduce their oral license agreement to a written easement. In the present case, as a precondition to the plaintiffs granting the Parsons an easement, the Parsons were to incur all costs to connect their pipe into the plaintiffs’ drainage system. When the plaintiffs discussed the bills for such services with the Parsons, the Parsons refused to pay. The trial court could reasonably have concluded, therefore, that at this point discussions of granting the Parsons an easement were terminated.

Even if the basis for the trial court’s decision could be read as ambiguous, we read “an ambiguous trial court record so as to support, rather than contradict, its judgment. Bell Food Services, Inc. v. Sherbacow, 217 Conn. 476, 482, 586 A.2d 1157 (1991).” Lauer v. Zoning Commission, 220 Conn. 455, 470, 600 A.2d 310 (1991). We have repeatedly stated that it is the appellant’s responsibility to provide an adequate record for review. See Practice Book § 4061; Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 595 A.2d 872 (1991); Barnes v. Barnes, 190 Conn. 491, 494, 460 A.2d 1302 (1983). “[W]here the factual or legal basis of the trial court’s decision is unclear, the appellant should file a motion for articulation pursuant to Practice Book § 4051. Thiel Realty Corporation v. Culligan Water Conditioning Co., 9 Conn. App. 191, 193, 517 A.2d 1052 (1986).” Elliss v. Ronning, 11 Conn. App. 662, 664, 528 A.2d 1174 (1987). In the absence of such action by the Parsons, we must presume that the trial court considered all the facts before it and applied the appropriate legal standards to those facts.

II

The Parsons next claim that the trial court improperly granted the plaintiffs injunctive relief. The Parsons argue that the plaintiffs failed to prove by a preponderance of the evidence that they would suffer irreparable harm without such relief and that they had no adequate remedy at law. This argument is without merit.

“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. Hartford v. American Arbitration Assn., 174 Conn. 472, 476, 391 A.2d 137 (1978).” (Internal quotation marks omitted.) Pet v. Department of Health Services, 207 Conn. 346, 370, 542 A.2d 672 (1988). “A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971).” (Internal quotation marks omitted.) Haggerty v. Parniewski, 11 Conn. App. 37, 39, 525 A.2d 984 (1987).

In the present case, the plaintiffs granted to the Parsons a license to connect a pipe into a catch basin on their property and to discharge water onto their property. The plaintiffs thereafter revoked this license. By rendering judgment in favor of the plaintiffs against the Habigs, in part, the trial court concluded that the Habigs were trespassing and committing a nuisance by leaving the pipe connected to the plaintiffs’ catch basin after the plaintiffs had revoked the license. We have held that in determining whether to grant injunctive relief, “a more liberal rule [is] followed in cases of a permanent or continuing nuisance,” such as a trespass. Hartford Rayon Corporation v. Cromwell Water Co., 126 Conn. 194, 199, 10 A.2d 587 (1940); see also Sisters of Saint Joseph Corporation v. Atlas Sand, Gravel & Stone Co., 120 Conn. 168, 180 A. 303 (1935). Under these facts we conclude that the trial court did not abuse its discretion in granting the plaintiffs injunctive relief.

The Parsons conterfd, however, that the court improperly granted the injunctive relief since the equities in the present case do not balance in favor of granting the plaintiffs injunctive relief. More specifically, the Parsons argue that the insignificant damage caused to the plaintiffs’ property by their pipe is greatly outweighed by the cost to the Parsons of removing the pipe and the damage that will be caused to the Habigs’ property.

We first note that “[t]he remedies open to the owner of land when a license for encroachment or the like has been revoked are largely dependent upon the circumstances, the equities between the parties, and the end sought to be attained. 17 R.C.L. p. 590. Injunction is available in a suitable case, and will ordinarily issue at the suit of a landowner to compel the removal of encroachments. 1 Amer. Jur. p. 515. See Norwalk Heating & Lighting Co. v. Vernam, 75 Conn. 662, 55 Atl. 168 [1903]; Geragosian v. Union Realty Co., 289 Mass. 104, 193 N.E. 726, 96 A.L.R. 1282, and note, p. 1287; 31 A.L.R. 1302; 17 A.L.R. 833. The right to this remedy extends, in appropriate cases, to structures erected or privileges exercised under a license, upon revocation thereof. See cases annotated, 38 A.L.R. p. 1138.” Bland v. Bregman, 123 Conn. 61, 66-67, 192 A. 703 (1937). Thus, an injunction is ordinarily a suitable remedy when a license for encroachment on land is revoked, such as in the present case.

“This court has noted [moreover] that . . . ‘[i]n exercising its discretion, the court, in a proper case, may consider and balance the injury complained of with that which will result from interference by injunction.’ Moore v. Serafin, 163 Conn. 1, 6, 301 A.2d 238 (1972), and cases cited therein. ‘The relief granted must be compatible with the equities of the case. Moore v. Serafin, [supra, 5]; Gerald Park Improvement Assn., Inc. v. Bini, 138 Conn. 232, 236, 83 A.2d 195 [1951].’ Dupuis v. Submarine Base Credit Union, Inc., 170 Conn. 344, 356, 365 A.2d 1093 (1976). We must assume, because of the absence of anything in the record to indicate the contrary, that before entering its order the court properly weighed the equities between the parties to the action. See Gerald Park Improvement Assn., Inc. v. Bini, supra, 237.” Berin v. Olson, 183 Conn. 337, 343, 439 A.2d 357 (1981). Our conclusion is consistent with the principle that we read an ambiguous trial court record so as to support, rather than contradict, its judgment. Lauer v. Zoning Commission, supra, 469-70.

III

In their cross appeal, the plaintiffs claim that the trial court improperly denied their motion to open and modify the judgment of the trial court rendered in favor, in part, of the plaintiffs. Specifically, the plaintiffs contend that the trial court did not give them the full relief that it should have because the “relief ordered against the Town of New Hartford in the judgment issued by the trial court was inconsistent with both its own factual findings and its legal conclusions as to the Town.” We disagree.

The following facts are relevant to this claim. The plaintiffs’ amended complaint alleged that “[t]he Defendant Town of New Hartford has breached its covenant to maintain the drainage system in accordance with the terms of the easement in that it has allowed silt, sand and salt to collect in said system, hampering its function, and causing water, salt, silt and sand to discharge out of the drainage system and onto the Plaintiffs’ property, causing erosion, exposing root systems and causing ecological damage, creating wetlands, causing damage to the Plaintiffs’ landscaping and seriously impairing the plaintiffs’ ability to use and enjoy their property.”

The trial court concluded that “the plaintiffs have sustained their burden of proof that the Town of New Hartford has failed to properly maintain ‘the enclosed catchbasin and the discharge system. . . .’ ” The court then ordered that, pursuant to the easement, “the plaintiffs are entitled to an order directing the town to periodically, as necessary, clear the catchbasin on the plaintiffs’ property as well as that located on Lair Road which feeds into the easement pipes.”

After the Parsons appealed from the judgment on the third party complaint, the plaintiffs cross appealed from the judgment rendered in favor, in part, of the plaintiffs. Subsequently, the plaintiffs filed a motion to open and modify the judgment in favor, in part, of the plaintiffs, pursuant to Practice Book § 326 and General Statutes § 52-212a. In their motion, the plaintiffs sought additional relief requesting the court, inter alia, to order New Hartford to maintain the entire drainage system, to clean the outflow area around the end of the final drainage pipe and to restore that area to its proper functioning condition. The trial court denied the plaintiffs’ motion without articulation. Thereafter, the plaintiffs amended their cross appeal to include the trial court’s denial of their motion.

We first note that the plaintiffs are not appealing from the judgment of the trial court rendered, in part, in their favor. Instead, they appeal from the trial court’s failure to grant their motion to open and modify that judgment. Therefore, the standard of review on this claim is one of abuse of discretion rather than the usual plenary appellate standard of review.

“A motion to open and vacate a judgment ... is addressed to the [trial] court’s discretion, and the action of the trial court will not be disturbed on appeal unless it acted unreasonably and in clear abuse of its discretion. See Manchester State Bank v. Reale, 172 Conn. 520, 523-24, 375 A.2d 1009 (1979); State v. Fahey, 147 Conn. 13, 15, 156 A.2d 463 (1959). In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of its action. State v. Bitting, 162 Conn. 1, 11, 291 A.2d 240 (1971); E.M. Loew’s Enterprises, Inc. v. Snrabian, 146 Conn. 608, 612, 153 A.2d 463 (1959). Celanese Fiber, Division of Celanese of Canada, Ltd. v. Pic Yarns, Inc., [184 Conn. 461, 466-67, 440 A.2d 159 (1981)]. Acheson v. White, 195 Conn. 211, 214-15, 487 A.2d 197 (1985). Yanow v. Teal Industries, Inc., 196 Conn. 579, 583, 494 A.2d 573 (1985). The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did. DiPalma v. Wiesen, 163 Conn. 293, 298, 303 A.2d 709 (1972); E. M. Loew’s Enterprises, Inc. v. Surabian, [supra, 611]. Ridolfi v. Ridolfi, 178 Conn. 377, 379, 423 A.2d 85 (1979).” (Internal quotation marks omitted.) Gillis v. Gillis, 214 Conn. 336, 340-41, 572 A.2d 323 (1990). Applying these principles, we conclude that the trial court did not act unreasonably or in abuse of its discretion and that its conclusions are amply supported by the evidence in the record.

In its decision, the trial court concluded that the plaintiffs had sustained their burden of proof that New Hartford failed to maintain the “enclosed catch basin and the discharge system.” The court found that “dark polluted water . . . [was discharged] from the town pipes . . . [and not] from the Habig property . . . .” The court then ordered New Hartford to “clear the catch basin on the plaintiffs’ property as well as that located on Lair Road which feeds into the easement pipes.”

The plaintiffs claim that the court, on the basis of its findings, should have ordered New Hartford to maintain the entire drainage system, to clean the outflow area around the end of the final drainage pipe, and to restore that area to its proper functioning condition. We conclude that the trial court did not abuse its discretion in denying the plaintiffs such additional relief.

The trial court could reasonably have concluded that the relief it had granted to the plaintiffs would solve the plaintiffs’ drainage problems and reduce the amount of dark polluted water on their property. The trial court ordered New Hartford periodically to maintain the first catch basin on the plaintiffs' property and the catch basin across the street from the plaintiffs’ property. Because all of New Hartford’s drainage water emptied into the plaintiffs’ first catch basin, the court could reasonably have concluded that its order of relief requiring New Hartford to clear that catch basin would abate the plaintiffs’ silt and sand problems at the outflow area. Furthermore, there was no requirement in the written easement that the plaintiffs had granted to New Hartford that New Hartford restore the plaintiffs’ property to its original condition. It was within the trial court’s discretion to fashion injunctive relief as it saw fit and we will not second guess that determination on appeal absent an abuse of discretion.

The judgment is affirmed.

In this opinion the other justices concurred.

       The Parsons also claimed in their brief that the trial court improperly concluded that they must indemnify the plaintiffs rather than the Habigs. The Parsons abandoned this claim in oral argument.

       The Parsons purchased lot 17 in November, 1985, and sold the lot to the Habigs in December, 1988.

       One of these pipes collected runoff water from a hill across the street from the plaintiffs’ property. The other pipe collected water from New Hartford’s storm drainage system.

       The easement provided: “WHEREAS, the Town of New Hartford has constructed two drain pipes that encroach approximately forty feet onto the property at the southeast corner, which discharges large amounts of water onto said property;
      “NOW, THEREFORE, in consideration of $1.00 and other valuable considerations received from the Town of New Hartford, the owners do hereby grant to the Town of New Hartford a permanent easement to discharge water onto the aforesaid property from these two drainage pipes, provided that the town of New Hartford complies with the following conditions:
      “1. The Town shall construct, or cause to be constructed, an enclosed catchbasin that ties directly into the two drainage pipes described above.
      “2. This catchbasin also shall be connected to a discharge drainage system constructed by the owners, which system shall discharge said water by underground pipe running approximately 200 feet in a northwest direction across the property and into a catchbasin located at the tree line adjacent to the northern boundary of the property and approximately 240 feet from Lair Road;
      “3. The Town shall be responsible for maintaining the enclosed catchbasin and the discharge system relating to the drainage of water from the two drainage pipes noted above.
      “4. Any replacement or modification of the two drain pipes by the Town shall be done only with prior, written consent of the owners. In no event shall the discharge of water from the two drain pipes increase beyond the reasonable capacity of the drainage system as constructed concurrent with the execution of this Agreement.
      “In the event of the Town’s failure to comply with any of the aforesaid terms, the owners shall have the option of either terminating this easement and blocking off the drainage pipes, or seeking equitable or legal relief from a court of law to enforce these terms.
      “Any such termination by the owner must be preceded by written notice to the Town by certified or registered mail, giving the Town 30 days to cure any deficiency. No such termination shall be valid without said notice.”

       As a condition to allowing the Parsons to connect into the plaintiffs’ water drainage system, the plaintiffs required the Parsons to incur all expenses associated with the connection of the pipe to the catch basin. After the Parsons’ pipe was connected into the drainage system, the plaintiffs were sent a bill for approximately $1800 for the installation. The Parsons refused to pay this amount and instead paid only $200 for the pipe connection. The Parsons’ builder, Jay Louden, also paid $125 for the pipe connection. The Parsons further paid $75 to remove trees in anticipation of the connection.

       The Parsons executed to the Habigs a No Survey Affidavit, which represented to the Habigs that “[t]he undersigned have owned the property for the last three years immediately preceding the date hereof [December 19, 1988], and during said period of ownership the undersigned have had no knowledge or notice of any claim of ownership or other interest ... by any other person for or in all or any part of the Property, including but not limited to any boundary line disputes or disagreements which may affect the size or location of improvements on the property or the size or location of improvements ... on neighboring property, and the undersigned have no knowledge of any encroachments or improvements which affect the property or the improvements thereon.” (Emphasis added.)

       The plaintiffs also alleged claims of trespass and nuisance against New Hartford. These claims are not involved in this appeal.

       The plaintiffs also alleged that the Habigs were trespassing and committing a nuisance by the construction of a black pipe on the Habigs’ property that discharged water onto the plaintiffs’ property and from the construction of the driveway which, due to its slope, discharged water onto the plaintiffs’ property. The trial court rendered judgment in favor of the Habigs on these issues. These issues are not involved in this appeal.

       Before we consider the Parsons’ claims, we must first determine if the judgment appealed from was final so that we have subject matter jurisdiction over the appeal. In the third party action, the trial court determined that the Parsons must indemnify the Habigs but did not determine the amount of damages “since the cost of any remedial work has not been done, nor has its necessary extent been determined.”
      In Ricci v. Naples, 108 Conn. 19, 20, 142 A.2d 452 (1928), the plaintiff brought suit against the defendant seeking an injunction ordering the defendant to “remove certain connections with an underground sewer pipe located upon the land of the plaintiff . . . .” The judgment was rendered upon the equitable issues for the plaintiff but “the damages had [not] been assessed by a jury.” Id., 21-22. We held that the “judgment, by its terms, disposes finally of all the issues in the case except the amount of damages and was a final judgment, as to the issues adjudicated, from which an appeal lay immediately to this court.” Id., 22. Similarly, in the present case, we conclude that the judgment appealed from was final. See also Glasson v. Portland, 6 Conn. App. 229, 231 n.3, 504 A.2d 550 (1986).

       The two cases were Birdsey v. Kosienski, 140 Conn. 403, 101 A.2d 274 (1953), and Foldeak v. Incerto, 6 Conn. Cir. Ct. 416, 274 A.2d 724 (1970). In Birdsey v. Kosienski, supra, 412, we held that an oral easement may be created, and thus taken out of the Statute of Frauds, by part performance by one of the parties. In Foldeak v. Incerto, supra, the Appellate Division of the Circuit Court held that an easement may be created by estoppel, even without a writing.

       The plaintiffs initially cross appealed only from that part of the judgment rendered in favor of the Habigs on the plaintiffs’ complaint. See footnote 8, supra.

       The plaintiffs’ motion was directed both to that part of the judgment rendered in favor of the plaintiffs and to that part of the judgment rendered in favor of the Habigs on the plaintiffs’ complaint.


author: Peters, C. J.

text:
    Alan J. Koepke v. Zoning Board of Appeals of Coventry et al.
    (14405)
    Peters, C. J., Callahan, Glass, Borden and Berdon, Js.

      Argued June 5
    decision released July 28, 1992

      Mark K. Branse, with whom, on the brief, was Matthew J. Willis, for the appellant (defendant Susan Oygard).

      Duncan J. Forsyth, with whom was Ronald P. Sherlock, for the appellee (plaintiff).
   Peters, C. J.

The principal issue in this case is the formulation of a proper remand when a zoning board of appeals, without having published a proper public notice, conducts a hearing and renders a decision on an appeal from an order of a zoning enforcement officer. The plaintiff, Alan J. Koepke, filed an administrative appeal to challenge a decision of the defendant zoning board of appeals of Coventry (board) invalidating, at the instance of the defendant Susan Oygard (defendant), a zoning permit previously granted to the plaintiff. The trial court sustained the plaintiffs appeal on the grounds of the defendant’s delay in appealing to the board and the board’s failure to publish an adequate notice of its hearing, and the Appellate Court affirmed the judgment of the trial court on the latter ground. Koepke v. Zoning Board of Appeals, 25 Conn. App. 611, 595 A.2d 935 (1991). We granted the defendant’s petition for certification to appeal and reverse in part.

The relevant facts are fully reported in the opinion of the Appellate Court. Id., 612-15. For present purposes, we note only the following. After several weeks’ consultation with Robert Isner, then the Coventry zoning agent, the plaintiff presented an application for a zoning permit, accompanied by a plot plan, in order to erect a 150 foot radio antenna on his property that would serve a public safety communications network. The plaintiff was granted a zoning permit on July 11, 1986. Responding to Isner’s subsequent concern about the manner in which the antenna tower would be attached to a building on the property, the plaintiff, on August 7, 1986, filed a new application with a revised plot plan and received a new zoning permit. The August permit bore the same number as the July permit and was issued without the payment of a new permit fee.

On August 12, 1986, the defendant filed an appeal to the board in which she challenged the validity of the August 7, 1986 permit, principally on the ground that an antenna tower was not a permitted use of the plaintiff’s property under the Coventry zoning regulations. The board sustained her appeal by a vote of four to one, and revoked the plaintiff’s permit. Upon receipt of a stop work order, the plaintiff appealed to the trial court, which concluded that the board had no jurisdiction to consider the defendant’s appeal because she had not filed it in timely fashion and because the board had failed to give proper public notice of its hearing on her appeal. The defendant then appealed to the Appellate Court, which affirmed the judgment of the trial court on the issue of lack of public notice without reaching the issue of the timeliness of the defendant’s appeal to the board. We granted certification to consider the merits of the issue of the adequacy of the public notice and the remedial consequences that should follow from its alleged inadequacy.

I

The principles that govern the statutory requirements for public notice of zoning board hearings are well established. “This court has distinguished between statutorily required published notice to the general public and statutorily required personal notice to specific individuals. We have long held that failure to give newspaper notice is a subject matter jurisdictional defect; see Jarvis Acres, Inc. v. Zoning Commission, 163 Conn. 41, 44, 301 A.2d 244 (1972); Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 109, 291 A.2d 721 (1971); Smith v. F. W. Woolworth Co., 142 Conn. 88, 94, 111 A.2d 552 (1955); and that ‘[s]ubject matter jurisdiction cannot be waived or conferred by consent.’ Demar v. Open Space & Conservation Commission, 211 Conn. 416, 424, 559 A.2d 1103 (1989).” Lauer v. Zoning Commission, 220 Conn. 455, 461-62, 600 A.2d 310 (1991). “ ‘The fundamental reason for the requirement of notice is to advise all affected parties of their opportunity to be heard and to be apprised of the relief sought.’ Slagle v. Zoning Board of Appeals, 144 Conn. 690, 693, 137 A.2d 542 [1957]; Winslow v. Zoning Board, 143 Conn. 381, 389, 122 A.2d 789 [1956].” Schwartz v. Hamden, 168 Conn. 8, 14, 357 A.2d 488 (1975). Noncompliance with the statutory requirement of public notice invalidates the subsequent action by the zoning board “even when the [affected] party appeared at the public hearing since the legislative intent to notify the public constructively would otherwise be frustrated.” Id., 15; see also Lunt v. Zoning Board of Appeals, 150 Conn. 532, 536-37, 191 A.2d 553 (1963); Slagle v. Zoning Board of Appeals, supra.

In the present case, the board published the following timely legal notice in a local newspaper: “The Coventry Zoning Board of Appeals will hold a public hearing on Tuesday, September 16, 1986, at 7:30 p.m. in the Board Room of the Town Hall to hear the following cases: . . . 3. Application of Norvald& Susan Oygard, seeking an appeal of the Zoning Agents decision to issue a permit under sec. 6.6 (sec. 13.1.1). . . . At this hearing, interested persons may be heard and written communications received prior to the close of the hearing. Dated at Coventry, Connecticut, this 3rd day of September, 1986. Brian Heath, Secretary 9/5/12.” Both the Appellate Court and the trial court have cogently observed that the published notice is remarkable for the information that it does not contain. It does not identify: (1) the subject matter of the appeal; (2) the location of the property at issue; (3) the owner of the property; or (4) the proposed use of the property. As the trial court stated: “A member of the public reading the newspaper notice would have no way of knowing, and no reason even to suspect that the plaintiffs property, the erection of a radio antenna, and public safety communication networks were in any way affected by the appeal of Susan Oygard.”

The first issue before us is whether the contents of this prehearing notice complied with the requirement of General Statutes § 8-7 that “[n]otice of the time and place of [a public hearing of a zoning board of appeals] shall be published in a newspaper . . . before such hearing.” We concur in the conclusion of the Appellate Court that the published notice provided legally insufficient advice to other property owners in Coventry about the defendant’s challenge to the validity of the plaintiff’s zoning permit and thereby impaired the public’s statutory right to participate in the public hearing on this subject.

Because the notice of a public hearing is designed to safeguard the public’s opportunity to participate, the plaintiffs voluntary participation in the hearing held by the board neither cured the jurisdictional defect; Schwartz v. Hamden, supra, 15; nor estopped him from raising it after the adverse board decision. Slagle v. Zoning Board of Appeals, supra, 693. Without subject matter jurisdiction, the board could not legally revoke the plaintiffs permit because the board’s public hearing and the decision predicated thereon are void. T. Tondro, Connecticut Land Use Regulation (1979) pp. 173-74.

II

The issue that remains to be considered concerns the consequences that flow from a zoning board’s invalid hearing and subsequent ruling on an appeal from a decision of a zoning enforcement officer. The parties have argued for the following possibilities: (1) because the board’s action was a nullity, the board in effect failed to act and such failure amounts to an automatic approval of the defendant’s application to vacate the plaintiff’s permit; (2) because the board’s action was a nullity, the board in effect failed to act and such failure amounts to a denial of the defendant’s application to vacate the plaintiff’s permit; and (3) even if the board’s action was a nullity, the board’s default does not nullify the defendant’s application, if that application was timely, and thus her application should be reconsidered at a properly noticed public hearing.

We conclude that the third of these alternatives furnishes the proper guidance for our decision here. The trial court resolved this issue regarding the subsequent consequences of the appeal by its separate finding that the defendant’s appeal to the board was untimely. If that finding was correct, and if an untimely filing voids an appeal, then the court’s judgment sustaining the plaintiff’s appeal necessarily reinstated the plaintiff’s permit. Although the defendant challenged the propriety of the determination of untimeliness in her appeal to the Appellate Court, that court concluded that its resolution of the notice issue was “dispositive of [her] appeal.” Koepke v. Zoning Board of Appeals, supra, 615. We disagree.

The timeliness of the defendant’s appeal to the board has significant implications for the board’s jurisdiction to entertain her appeal. If her appeal did not comply with the thirty day provision of § 8-7, lateness may have deprived the board of subject matter jurisdiction to consider the merits of her appeal. Compare Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-506, 503 A.2d 1161 (1986), and Royce v. Freedom of Information Commission, 177 Conn. 584, 587, 418 A.2d 939 (1979), with Trinkley v. Ella Grosso Regional Center, 220 Conn. 739, 744-45, 601 A.2d 515 (1992), and Donohue v. Zoning Board of Appeals, 155 Conn. 550, 554, 235 A.2d 643 (1967). The case must be remanded to the Appellate Court for its plenary consideration of this issue.

If the Appellate Court concludes that the board had jurisdiction to hear the defendant’s appeal, it should reverse the judgment of the trial court and remand the case to that court with direction to remand the case for further proceedings before the board to determine the merits of the appeal, after providing adequate public notice. While the board’s failure to give proper notice of its public hearing nullified its subsequent actions, that default had no further automatic consequences. Even if a failure to give proper notice were deemed the equivalent of a failure to take timely action within the time constraints of § 8-7, that statute, contrary to General Statutes §§ 8-3 (g) or 8-26, does not make inaction tantamount to approval either of the challenged zoning permit or of the challenged appeal. “The statute contains nothing which expressly invalidates a belated decision or which inferentially makes compliance [with time constraints for board decisions] a condition precedent.” Donohue v. Zoning Board of Appeals, supra, 554.

On the assumption that the board initially had jurisdiction to hear the defendant’s appeal, sound public policy requires a remand to the board to enable it to complete its proceedings in proper fashion. As in Caserta v. Zoning Board of Appeals, 219 Conn. 352, 362, 593 A.2d 118 (1991), it would be inappropriate to permit the plaintiff to retain his zoning permit, if the defendant is right on the merits, solely because of the board’s improper public notice. The board’s default was no more attributable to the defendant than it was to the plaintiff. Either party could have called this default to the board’s attention at the time of the public hearing. The rationality of land use planning procedures is strengthened by the disposition of zoning appeals on their merits. Id.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       This court granted certification for appeal limited to the following issues: “(1) Did the Appellate Court correctly hold that the contents of the public hearing notice published by the board was so inadequate as to deprive it of jurisdiction? (2) Should the Appellate Court, after concluding that the Coventry board of appeals lacked jurisdiction of the [defendant’s] appeal from the granting of a permit by the zoning enforcement officer because the hearing notice was defective, have ordered that the board conduct a new hearing on the [defendant’s] appeal after giving proper notice thereof?” Koepke v. Zoning Board of Appeals, 220 Conn. 931, 931-32, 599 A.2d 382 (1991).

       The defendant’s application to the board stated the following grounds for her appeal:
      “(1) Approval by Mr. Isner of a 150 ft antenna across the street from our property will adversely affect our property value.
      “(2) A 150 ft antenna does not belong in an Ru-40 zone. Height exemptions under 6.6 do not apply. See Carole Halloran et al vs. Coventry ZBA.”

       General Statutes § 8-7 provides in relevant part: “The concurring vote of four members of the zoning board of appeals shall be necessary to reverse any order, requirement or decision of the official charged with the enforcement of the zoning regulations .... An appeal may be taken to the zoning board of appeals by any person aggrieved or by any officer, department, board or bureau of any municipality aggrieved and shall be taken within such time as is prescribed by a rule adopted by said board, or, if no such rule is adopted by the board, within thirty days .... Such board shall, within the period of time permitted under section 8-7d, hear such appeal [i.e., such hearing shall commence within sixty-five days after receipt of the appeal] . . . .”

       General Statutes § 8-7 provides in relevant part: “Notice of the time and place of such hearing shall be published in a newspaper having a substantial circulation in such municipality at least twice at intervals of not less than two days, the first not more than fifteen days, nor less than ten days, and the last not less than two days before such hearing.”

       See footnote 3, supra.

       General Statutes § 8-3 (g), governing zoning commission certification of occupancy site plans, provides in relevant part: “Approval of a [requested] site plan [by the zoning commission] shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d [i.e., such decision shall be rendered within sixty-five days after the site plan has been filed], A certificate of approval of any plan for which the period for approval has expired and on which no action has been taken shall be sent to the applicant within fifteen days of the date on which the period for approval has expired.”

       General Statutes § 8-26, governing municipal planning commission approval of subdivision and resubdivision plans, provides in relevant part:
      “All plans for subdivisions and resubdivisions . . . shall be submitted to the [municipal planning] commission with an application in the form prescribed by it. . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application . . . within the period of time permitted under section 8-26d [i.e., such action shall be performed within sixty-five days after receipt of such application], . . . The failure of the commission to act thereon shall be considered as an approval, and a certificate to that effect shall be issued by the commission on demand.” We express no opinion about the effect of a defective prehearing notice on a hearing conducted under this section. That issue is squarely presented by Koskoff v. Planning & Zoning Commission, 27 Conn. App. 443, 607 A.2d 1146 (1992), in which this court has recently granted certification to appeal. Koskoff v. Planning & Zoning Commission, 222 Conn. 912, 608 A.2d 695 (1992).