author: PALMER, J. NORCOTT, J.,

text:
    STATE OF CONNECTICUT v. MAXIME HILL
    (15011)
    Peters, C. J., and Callahan, Berdon, Norcott and Palmer, Js.

      Argued December 6, 1995
    officially released May 21, 1996

      Jon L. Schoenhom, with whom, on the brief, was Beth J. Rittenband, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Maureen Keegan, assistant state’s attorney, for the appellee (state).
   PALMER, J.

A jury found the defendant, Máxime Hill, guilty of possession of more than one-half gram of crack cocaine with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 2 la-278 (a) and possession of heroin with the intent to sell in violation of General Statutes § 21a-277 (a). The defendant has appealed from the judgment of the trial court sentencing him to an effective term of imprisonment of thirteen years. On appeal, he claims that: (1) the trial court improperly failed to suppress certain narcotics seized by the police in violation of his constitutional rights; (2) he was convicted and sentenced on the two separate narcotics offenses in violation of the constitutional prohibition against double jeopardy; and (3) the evidence adduced at trial was insufficient to establish that he intended to sell crack cocaine and heroin. We affirm the judgment of the trial court.

A jury reasonably could have found the following facts. On September 16, 1992, Sergeant Michael Ricci of the Waterbury police department was patrolling the north end of the city in a marked police cruiser. In the late morning, Ricci, who was alone in the vehicle, observed two men, the defendant and an unidentified male, engaged in conversation on the sidewalk opposite Ricci’s cruiser, about 100 feet away, in front of 33 Irion Street. The unidentified male, who was facing in Ricci’s direction, saw the cruiser approaching and hurriedly walked away, disappearing from Ricci’s view into an adjacent alleyway. The defendant, who had been standing with his back to the cruiser, turned around and, upon observing the police vehicle, walked quickly toward the entrance to the first floor apartment at 33 Irion Street. Ricci, now about fifty feet away from the defendant, saw that he was holding a plastic “sandwich-type” baggie.

Ricci pulled his cruiser over to the opposite side of the road and parked it, against the traffic, in front of 33 Irion Street. As Ricci was exiting his vehicle, he observed the defendant enter the 33 Irion Street apartment and toss the plastic baggie to his right, just inside the doorway of the apartment. Ricci followed the defendant through the open doorway, observed the baggie on a couch located immediately to his right, and proceeded to the rear of the apartment, where he apprehended the defendant and detained him. Moments thereafter, a second police officer arrived at the apartment to assist Ricci, who then retrieved the baggie from the couch. A search of the baggie’s contents revealed forty-four pink “zip-lock” bags, each containing a white, rock-like substance subsequently determined to be crack cocaine, three small glassine packets, each containing a white powder subsequently determined to be heroin, and several empty zip-lock bags. The defendant was then placed under arrest and transported to the police station. Additional facts will be set forth as they become relevant.

Prior to trial, the defendant moved to suppress the narcotics seized by the police at 33 Irion Street on the ground that the evidence had been obtained in violation of his rights under the federal and state constitutions. After an evidentiary hearing, the trial court denied the defendant’s motion and the narcotics evidence was introduced by the state in its case-in-chief. At the conclusion of the trial, the jury found the defendant guilty as charged.

I

At the suppression hearing, the defendant claimed that he was illegally seized by Ricci while he was standing in front of 33 Irion Street because Ricci did not have a sufficient basis to detain him at that time as required under article first, §§ 7 and 9, of the Connecticut constitution. The defendant further claimed that Ricci’s warrantless entry into the 33 Mon Street apartment violated his rights under the fourth amendment to the United States constitution and under article first, §§ 7 and 9, of the Connecticut constitution. The defendant maintained that each of these allegedly illegal actions provided a separate and independent basis for the suppression of the narcotics evidence confiscated by the police from the 33 Mon Street apartment. The trial court disagreed, concluding, as to the first claim, that the defendant had not been seized by the police until he was detained by Ricci inside the apartment and, as to the second claim, that the defendant did not have standing to challenge the warrantless police entry into the apartment. On appeal, the defendant contends that the trial court’s conclusions are not supported by the evidence and, accordingly, that the court’s denial of his motion to suppress was improper. We disagree with the defendant.

A

The defendant first claims that the trial court improperly concluded that he was not seized within the meaning of article first, §§ 7 and 9, of the state constitution when Ricci approached him in the police cruiser while he was standing on the sidewalk in front of 33 Irion Street. The defendant further maintains that all evidence obtained by the police subsequent thereto must be suppressed as the fruit of the illegal detention. We are not persuaded that the defendant was seized while he was on the sidewalk.

We have recently articulated the test for determining whether a person has been seized for purposes of the Connecticut constitution: “[A] person [is defined] as ‘seized’ under our state constitution when by means of physical force or a show of authority, his freedom of movement is restrained. ... In determining whether a seizure has occurred, so as to invoke the protections of our state constitution ... a court is to consider whether in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. . . . Whether there has been such a seizure in an individual case is a question of fact.” (Citations omitted; internal quotation marks omitted.) State v. Oquendo, 223 Conn. 635, 647, 613 A.2d 1300 (1992). Furthermore, “[t]he trial court’s determination [of whether a seizure occurred] will not be overturned unless it was clearly erroneous. . . . When a factual issue implicates a constitutional claim, however, we review the record carefully to ensure that its determination was supported by substantial evidence.” (Citation omitted.) State v. Greenfield, 228 Conn. 62, 68-69, 634 A.2d 879 (1993).

After a thorough review of the record, we conclude that the trial court’s determination that the defendant was not seized until after he had entered the apartment at 33 Irion Street is amply supported by the evidence. As the trial court expressly found, Ricci’s actions outside 33 Irion Street were limited to pulling up to the curb on the wrong side of the street and exiting his vehicle. Although Ricci was in uniform and operating a marked police vehicle, Ricci testified that he never turned on his emergency lights, headlights, loudspeaker or siren, that he did not order the defendant to stop or otherwise attempt to communicate with the defendant in any way, and that he did not display a weapon. Thus, the evidence established that Ricci did not confront the defendant or engage in any other conduct that reasonably could have caused the defendant to believe that he was required to remain on the sidewalk in front of 33 Irion Street as Ricci’s cruiser approached.

The defendant nevertheless contends that he was seized outside 33 Irion Street when Ricci “drove toward him on the wrong side of the road at a rapid speed and then exited the vehicle.” Even if such conduct by the police could constitute a show of authority sufficient to cause a reasonable person to believe that he or she was not free to leave, the trial court was not bound to agree with the defendant’s characterization of Ricci’s conduct. Although Ricci stated that only a few seconds had elapsed from the moment he first saw the defendant until he exited his police vehicle, he also testified that he traveled only about 100 feet in that brief period. Because Ricci’s testimony is entirely consistent with the conclusion that he was traveling at a slow or moderate rate of speed, the trial court was not required to conclude, contrary to the defendant’s claim, that Ricci had proceeded on Irion Street toward the defendant at a high rate of speed.

Moreover, the defendant adduced no evidence to establish that he saw Ricci exit the police cruiser. In fact, Ricci’s uncontradicted testimony suggests quite the opposite: according to Ricci, he observed the defendant enter the 33 Irion Street apartment and toss aside the plastic baggie before Ricci had opened the door to his cruiser. In the absence of proof that the defendant was aware that Ricci had exited his vehicle, the fact that Ricci did so provides no support for the defendant’s claim that “a reasonable person in the defendant’s position would have believed that he was not free to leave.” State v. Oquendo, supra, 223 Conn. 653.

The only evidence that arguably supports the defendant’s claim is Ricci’s testimony that he drove down Irion Street in the direction of the defendant and parked on the wrong side of the street. We are unable to conclude, based solely upon those facts, that a person in the defendant’s position reasonably would have concluded that he was required to remain on the sidewalk in front of 33 Irion Street. The mere approach by a police officer, either in a police car or on foot, does not alone constitute a show of authority sufficient to cause the subject of the officer’s attention reasonably to believe that he or she is not free to leave. To conclude otherwise would be to render unconstitutional a broad range of police investigatory activity that has long been deemed proper. “Police officers do not violate an individual’s constitutional rights by approaching him, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering into evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983); State v. Brown, 199 Conn. 47, 52-53, 505 A.2d 1225 (1986).” State v. Damon, 214 Conn. 146, 153-54, 570 A.2d 700, cert. denied, 498 U.S. 819, 111 S. Ct. 65, 112 L. Ed. 2d 40 (1990). If questioning by the police on the street does not necessarily give rise to constitutional protections, we fail to see why the trial court was required to conclude that Ricci’s actions, which included no attempt to communicate with the defendant, constituted a seizure for constitutional purposes. Because the trial court’s conclusion that the defendant was not seized outside 33 Irion Street is fully supported by the evidence, the defendant’s claim must fail.

B

The defendant next contends that the trial court improperly concluded that he lacked standing, under either the federal or the state constitution, to challenge the propriety of Ricci’s warrantless search of the 33 Irion Street apartment. We disagree.

The touchstone to determining whether a person has standing to contest an allegedly illegal search is whether that person has a reasonable expectation of privacy in the invaded place. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978); State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). “ ‘Absent such an expectation, the subsequent police action has no constitutional ramifications.’ ” State v. Mooney, 218 Conn. 85, 94, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991); State v. Brown, 198 Conn. 348, 355, 503 A.2d 566 (1986). “In order to meet this rule of standing ... a two-part subjective/ objective test must be satisfied: (1) whether the [person contesting the search] manifested a subjective expectation of privacy with respect to [the invaded premises]; and (2) whether that expectation [is] one that society would consider reasonable. . . . This determination is made on a case-by-case basis. . . . Whether a defendant’s actual expectation of privacy ... is one that society is prepared to recognize as reasonable involves a fact-specific inquiry into all the relevant circumstances.” (Citations omitted; internal quotation marks omitted.) State v. Joyce, supra, 20. Furthermore, “[t]he defendant bears the burden of establishing the facts necessary to demonstrate a basis for standing”; State v. Callari, 194 Conn. 18, 23, 478 A.2d 592 (1984), cert. denied, 469 U.S. 1210, 105 S. Ct. 1178, 84 L. Ed. 2d 327 (1985); and the trial court’s “finding [on the question of standing] will not be overturned unless it is legally or logically inconsistent with the facts found or involves an erroneous rule of law.” State v. Pittman, 209 Conn. 596, 601, 553 A.2d 155 (1989).

It is well established that the owner or tenant of a dwelling has standing to contest the legality of a search of that premises. Rakas v. Illinois, supra, 439 U.S. 142; State v. Brown, supra, 198 Conn. 357. However, “[t]he capacity to claim the protection of the fourth amendment does not depend upon a proprietary interest, permanency of residence, or payment of rent but upon whether the person who claims fourth amendment protection has a reasonable expectation of privacy in the invaded area. . . . Further, the fact that a person does not have the exclusive use of an area does not bar his having a reasonable expectation of privacy that furnishes standing to object to a government seizure.” (Citations omitted.) State v. Reddick, 207 Conn. 323, 330-31, 541 A.2d 1209 (1988). Accordingly, a person who makes a telephone call from a public telephone booth may challenge the state’s warrantless interception of the call; Katz v. United States, 389 U.S. 347, 352-53, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); and an overnight guest has the right to contest a warrantless entry into his or her host’s home. Minnesota v. Olson, 495 U.S. 91, 98, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990); State v. Brosnan, 221 Conn. 788, 807-809, 608 A.2d 49 (1992); State v. Reddick, supra, 331. Thus, “a person may have a sufficient interest in a place other than his home to enable him to be free in that place from unreasonable searches and seizures”; Minnesota v. Olson, supra, 98; so long as the place is one “in which society is prepared, because of its code of values and its notions of custom and civility, to give deference to a manifested expectation of privacy.” United States v. Taborda, 635 F.2d 131, 138 (2d Cir. 1980); State v. Mooney, supra, 218 Conn. 95.

The defendant claims that he had a reasonable expectation of privacy in the apartment at 33 Irion Street and, therefore, that he has a right under both the federal and state constitutions to contest Ricci’s warrantless search of those premises. Although he concedes that he was not an overnight guest, he contends that his subjective expectation of privacy was objectively reasonable because he had entered the apartment with the consent of the apartment’s tenants and had temporarily left his backpack there. We conclude that the trial court properly denied the defendant’s suppression motion on the ground that he failed to sustain his burden of establishing standing under either the state or the federal constitution.

As we have previously indicated, Ricci was the only witness to testify at the suppression hearing conducted by the trial court. At no time during the suppression hearing testimony, however, did Ricci indicate either that the defendant had permission to be at the 33 Irion Street apartment or that the defendant’s backpack was in the apartment. The defendant, moreover, offered no other evidence in support of his claim of standing. In light of the evidence before it, therefore, the trial court properly concluded that the defendant had adduced “no evidence with respect to standing. . . . There is no indication on the record of any standing of the defendant.”

As the defendant points out, however, evidence was later presented at trial indicating that he had permission to be in the apartment at 33 Irion Street and that he had briefly unshouldered his backpack there. The defendant claims that this evidence is sufficient to establish his standing to contest the warrantless seizure of the narcotics inside the 33 Irion Street apartment. We disagree.

The defendant testified that he knew the tenants of the 33 Irion Street apartment and that he had traveled there from his home in New York to pick up an acquaintance, Michael Hurdle, who was a tenant of the apartment. The defendant also testified that the police arrived at the apartment only moments after he had arrived there and shortly before he and Hurdle were about to depart.

Notwithstanding the defendant’s unsupported assertion to the contrary, the defendant’s fourth amendment standing claim is foreclosed by Rakas v. Illinois, supra, 439 U.S. 142, wherein the United States Supreme Court stated that “a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends . . . [has] absolutely no interest or legitimate expectation of privacy in the [house] . . . .” See also State v. Brown, supra, 198 Conn. 357-59 (person whose right of access to rented garage is shared with other tenants has no legitimate expectation of privacy in that space).

The defendant also argues that he is entitled to challenge the seizure of the narcotics under article first, § 7, of the state constitution. Specifically, he urges us to construe our state constitution as embracing a broader view of the “reasonable expectation of privacy” test, under which a houseguest would have the right to contest a search of his or her host’s home. Because “our adoption of an analytical framework or methodology used under the federal constitution does not compel this court to reach the same outcome that a federal court might reach when the methodology is applied to aparticular set of factual circumstances”; State v. Joyce, supra, 229 Conn. 18 n.12; we are required to determine whether the defendant’s expectation of privacy in the 33 Irion Street apartment was an objectively reasonable one for state constitutional purposes. See, e.g., State v. DeFusco, 224 Conn. 627, 633, 620 A.2d 746 (1993) (whether article first, § 7, of state constitution affords greater protection than federal constitution against warrantless searches of garbage placed at curb for collection requires determination of whether defendant’s expectation of privacy in such garbage is one that Connecticut citizens would deem reasonable). The defendant, however, has offered no explanation why his momentary stop at the 33 Irion Street apartment gave rise to an expectation of privacy in those premises that could be recognized as reasonable even under the most expansive application of the “reasonable expectation of privacy” test. Accordingly, we conclude that the defendant lacks standing to challenge the legality of Ricci’s warrantless entry into the apartment under the state constitution.

II

The defendant next contends that his separate convictions and sentences for possession of more than one-half gram of crack cocaine with the intent to sell by a person who is not drug-dependent under § 21a-278 (a) and for possession of heroin with the intent to sell under § 21a-277 (a) violated the double jeopardy clause of the fifth amendment to the United States constitution. Although the defendant failed to raise this claim in the trial court, he seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We agree that the record is adequate for review of the defendant’s double jeopardy claim, but we conclude that he is not entitled to relief.

The constitutional guarantee against double jeopardy “serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial]. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).” (Internal quotation marks omitted.) State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). The defendant’s claim implicates the last of these three protections. To prevail thereunder, the defendant must establish both that the charges arise out of the same act or transaction and that the charged crimes are the same offense. State v. Greco, 216 Conn. 282, 290-91, 579 A.2d 84 (1990).

In determining whether the crimes charged constitute the same offense, we must ascertain the intent of the legislature. “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983); Garrett v. United States, 471 U.S. 773, 793, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); State v. Greco, supra, 216 Conn. 290. “[T]he role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multipie punishments for the same offense.” Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977); State v. Greco, supra, 290; see also Albernaz v. United States, 450 U.S. 333, 344, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) (“the question of what punishments are constitutionally permissible is not different from the question of what punishment the Legislative Branch intended to be imposed”). “The issue, [therefore,] though essentially constitutional, becomes one of statutory construction.” State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985).

“The traditional approach to analyzing whether two offenses constitute the same offense [for double jeopardy purposes] was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. ... In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial. . . .” (Citations omitted; internal quotation marks omitted.) State v. Greco, supra, 216 Conn. 291.

Application of the Blockburger test to this case leads to the conclusion that the information alleges two separate and distinct offenses for double jeopardy purposes. The first count of the information charges the defendant with possessing more than one-half gram of cocaine in a free-base form with the intent to sell, while the second count alleges that the defendant possessed heroin with the intent to sell. Because each of the two charges requires proof of a fact that the other does not, it may be presumed that the legislature did not intend to prohibit multiple punishments for the conduct underlying the two charges.

Because the Blockburger test creates only a rebuttable presumption of legislative intent, the test is not controlling when a contrary intent is manifest. State v. Kulmac, 230 Conn. 43, 70, 644 A.2d 887 (1994); State v. Greco, supra, 216 Conn. 292. It is clear, however, that the pertinent statutory language, when viewed in the context of the purpose of our drug laws, fully supports the conclusion that the possession of one-half gram or more of crack cocaine with the intent to sell by a person who is not drug-dependent under § 21a-278 (a) and possession of heroin with the intent to sell under § 2 la-277 (a) give rise to separate crimes carrying separate punishments.

First, although crack cocaine and heroin are classified as narcotics, they are two different drugs with entirely different properties. That the legislature recognized this difference is reflected in the fact that in order to prove the crime of possession of narcotics with the intent to sell under § 2 la-278 (a), the state must establish that the defendant possessed at least one ounce of heroin, whereas the state may obtain a conviction under the same statutory subsection by proving that the defendant possessed as little as one-half gram of crack cocaine. Moreover, it is unreasonable to conclude that the legislature would have authorized separate prosecutions for the possession of one-half gram of cocaine with the intent to sell and for the possession of one ounce of heroin with the intent to sell, as it apparently has under § 21a-278 (a), and to prohibit separate prosecutions for the possession of at least one-half gram of crack cocaine with the intent to sell under § 21a-278 (a) and for the possession of heroin with the intent to sell under § 21a-277 (a).

Furthermore, the statutory construction urged by the defendant would lead to a bizarre result. Under the defendant’s construction, the state may prosecute him either for possession of at least one-half gram of crack cocaine with the intent to sell under § 21a-278 (a) or for possession of heroin with intent to sell under § 2 la-277 (a), but not for both. The state, however, cannot use the heroin seized from the 33 Irion Street apartment to establish the crack cocaine offense, because heroin and crack cocaine are not fungible for purposes of § 21a-278 (a). Likewise, the state cannot use the crack cocaine seized from the apartment to prove the violation it alleged under § 21a-277 (a) because the information charged the defendant with a heroin offense under that statutory subsection, not with a crack cocaine offense. If the defendant’s double jeopardy analysis were correct, therefore, the defendant would be immunized from criminal liability for one or the other of the two crimes merely because he happened to be in simultaneous possession of the two different types of narcotics. We are unwilling to conclude that the legislature could have intended such consequences. See, e.g., State v. Spears, 234 Conn. 78, 92, 662 A.2d 80 (1995) (we presume legislature does not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results).

Finally, our drug laws reflect the strong public policy that neither the use nor the sale of illicit drugs will be tolerated in this state. The harshest sentences, of course, are reserved for professional drug dealers, who are deemed to pose the greatest threat to our society. Because an obvious purpose of our drug statutes is to reduce the drug trade in Connecticut, multiple punishments for the sale of two different kinds of drugs is entirely consistent with our state drug policy.

We conclude, therefore, that the legislature did not intend to bar multiple punishment for the simultaneous possession of crack cocaine and heroin with the intent to sell. Accordingly, the defendant’s double jeopardy claim is without merit.

III

The defendant also claims that the state failed to prove beyond a reasonable doubt that he intended to sell the crack cocaine and heroin that was seized from the 33 Irion Street apartment. Although this claim was not raised below, the defendant seeks to prevail under State v. Golding, supra, 213 Conn. 239-40. Although we agree that review of the claim is appropriate, we are not persuaded by the merits of the defendant’s argument.

The following additional facts are necessary to a resolution of this issue. The state elicited the expert testimony of Waterbury police sergeant Edward Stephens to establish that the defendant intended to sell the narcotics found at the 33 Irion Street apartment. Stephens, a thirteen year veteran of the police department, testified that he had been assigned to the department’s vice and intelligence division for five years, that he had received extensive training in drug investigations, that he had personally conducted numerous narcotics investigations, including surveillances and undercover operations, that he had made over 500 arrests lor drug sales, and that he had interviewed many informants and arrestees as a member of the department’s “organized narcotics network unit,” a special unit established to develop intelligence information about the drug trade in Waterbury. Stephens opined, on the basis of his training and experience, that the narcotics seized from the apartment had been prepared and packaged for sale rather than for personal use because a drug user, in contrast to a drug dealer, would not maintain possession of such a large quantity of narcotics. Stephens further explained that it is commonplace for dealers to store their drugs in plastic zip-lock bags, to retain a supply of extra bags, to sell more than one type of illegal drug, and to carry those drugs in a single container, thereby facilitating the disposal of the contraband, if necessary. Stephens also testified that consumers of heroin and crack cocaine generally are arrested in possession of narcotics paraphernalia used to aid in the ingestion of the drugs, and that the absence of any such paraphernalia in the defendant’s possession supported the conclusion that he was not a user. Finally, in addition to Stephens’ expert testimony, the defendant himself testified that although he had used narcotics at one time, he was not involved with drugs at or around the time of his arrest in September, 1992.

In reviewing the defendant’s claim of evidentiary insufficiency, “we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). Because intent to sell is an element of the crimes with which the defendant was charged, that intent must be proven beyond a reasonable doubt. Id., 126-27. However, “ ‘direct evidence of the accused’s state of mind is rarely available.’ ” State v. Greenfield, 228 Conn. 62, 77, 634 A.2d 879 (1993). “Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt. . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Citations omitted; internal quotation marks omitted.) State v. Sivri, supra, 126.

Construed in the light most favorable to sustaining the verdict, the evidence adduced at trial was sufficient to establish beyond a reasonable doubt that the defendant had intended to sell the narcotics seized from the 33 Irion Street apartment. In view of the uncontradicted testimony of Stephens, the jury reasonably could have concluded that only a drug trafficker would have possessed the quantity, type and combination of narcotics found at that address. Moreover, the jury was free to accept the defendant’s own testimony that he was not using drugs when he was arrested in September, 1992. Accordingly, the defendant cannot prevail on his claim of evidentiary insufficiency.

The judgment is affirmed.

In this opinion PETERS, C. J., and CALLAHAN, J., concurred.

NORCOTT, J.,

with whom BERDON, J., joins, dissenting. I agree with the conclusions of the majority regarding the defendant’s double jeopardy and sufficiency of the evidence claims. See parts II and III of the majority opinion. I also agree that the record does not support the defendant’s claim that he was seized outside of 33 Irion Street in Waterbury. See part IA of the majority opinion. Regrettably, however, I cannot agree with the majority’s treatment of the defendant’s claim that the narcotics admitted into evidence against him at trial should have been suppressed because the search that produced them, conducted in a private dwelling, was not supported by probable cause or an exception to the warrant requirement, and was, therefore, violative of the fourth amendment to the United States constitution and article first, § 7, of the state constitution. The majority does not reach the defendant’s challenge to the search under the state constitution because it concludes that the defendant has not demonstrated that he has standing to raise it. In essence, my disagreement with the majority rests on its decision not to review the defendant’s contention that our state constitution affords him so-called “automatic standing” to raise this claim.

In order to challenge the legality of the search of the apartment at 33 Irion Street under the fourth amendment, and thereby to seek suppression of the fruits of the search under the federal exclusionary rule, the defendant must demonstrate that he had a reasonable expectation of privacy in the place searched. Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978). This standard requires the defendant to demonstrate: (1) that he manifested a subjective expectation of privacy with respect to the invaded premises; and (2) that his expectation is one that society would consider reasonable. State v. Joyce, 229 Conn. 10, 20, 639 A.2d 1007 (1994). I agree with the majority that, on the record before us, the defendant has failed to demonstrate an expectation of privacy respecting the apartment that satisfies this standard as it has been applied and, therefore, cannot prevail on his federal constitutional claim. See Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990).

I depart from the majority, however, in its resolution of the defendant’s challenge to the search of the apartment under the state constitution. The majority concludes that it cannot reach this claim because the defendant has failed to demonstrate his standing to raise it. In this regard, the majority acknowledges that the defendant has, in its view belatedly, indicated that he relies on the principle of “automatic standing” to challenge the search under the state constitution. Under the rule of automatic standing, a defendant may seek to suppress evidence as the fruit of an illegal search if he or she was legitimately on the invaded premises or has been charged with an offense of which possession of the seized item is an element. See Jones v. United States, 363 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960). As the majority notes, we have followed the reasonable expectation of privacy standard under the state constitution; State v. Joyce, supra, 229 Conn. 20; but we have not yet addressed the question whether the doctrine of automatic standing is incorporated by article first, § 7. The majority declines to review this issue, however, because, in its view, “[a]t no point in his main brief did the defendant clearly indicate that we should adopt a rule of automatic standing for purposes of the state constitution,” and, apparently alternatively, because the defendant failed to “engage in any of the substantive analysis that is a necessary prerequisite to our consideration of state constitutional claims.” (Emphasis added.) I believe that the majority’s resolution of the defendant’s automatic standing claim sells short both his efforts to raise and brief this issue.

First, I do not agree that the first time the defendant fairly may be considered to have apprised this court of his reliance on the principle of automatic standing, in connection with his challenge to the search of the apartment under the state constitution, was, as the majority suggests, in his reply brief. I note initially that in his motion to suppress, the defendant apprised the trial court, albeit broadly, that he was invoking article first, § 7, of the state constitution. More importantly, in his main brief, the defendant unmistakably claims that, even if the record does not support the conclusion that he has demonstrated a privacy interest that satisfies the reasonable expectation of privacy test articulated in Rakas v. Illinois, supra, 439 U.S. 143, and State v. Joyce, supra, 229 Conn. 20, this court should construe article first, § 7, of the state constitution to incorporate a more inclusive standing doctrine, namely, the automatic standing rule articulated in Jones, pursuant to which a casual visitor to a home, such as the defendant here, would have standing to challenge the search of those premises. He expressly states in his brief that he seeks a modification of the current standing rule under the state constitution. Moreover, with regard to the scope of the broader standard he advances, the defendant suggests that the court should permit “personal guests and similar home visitors” to claim the protection of the exclusionary rule under the state constitution. He notes that this court has previously recognized the automatic standing rule in applying the federal constitution, and he argues that, although this court in Joyce articulated the reasonable expectation of privacy test of standing, “[w]hether this court is prepared to bestow standing on houseguests of varying degrees and relations, as the defendant urges, remains an open question in this jurisdiction,” referring us to several cases from “other state courts of last resort that hold that state constitutional or statutory provisions require continued adherence to the standing doctrines of Jones.” In my view, reading the defendant’s main brief in a liberal, nontechnical fashion, which, I believe, is appropriate in order not to penalize parties, particularly criminal defendants, for a somewhat inartful or imprecise presentation of issues; cf. State v. Zarick, 227 Conn. 207, 221, 630 A.2d 565, cert. denied, 510 U.S. 1025, 114 S. Ct. 637, 126 L. Ed. 2d 595 (1993); State v. Whitaker, 215 Conn. 739, 751 n.14, 578 A.2d 1031 (1990); we must conclude that the defendant adequately apprised this court, and the state, of his claim that article first, § 7, of the state constitution should be construed to incorporate the broader “automatic standing” rule, at least to the extent that it protects casual visitors.

That the state chose not to address this claim in its brief does not alter my assessment that it was adequately raised by the defendant. The state expressly declined to do so on the ground that the defendant had “fail[ed] to engage in any substantive analysis of article first, § 7,” which indicates that the state was aware that the defendant advocated adoption of the broader automatic standing standard pursuant to the state constitution. Furthermore, at oral argument, the state specifically addressed what it termed “the defendant’s automatic standing claim.” Significantly, the state did not argue that the defendant had not adequately raised this claim, but, rather, argued that the defendant had not provided a compelling justification to adopt it and that the court should continue to adhere to the reasonable expectation standard under the state constitution.

I also disagree with the majority that the defendant’s analysis of his state constitutional claim was not minimally adequate to warrant review. As a prefatory matter, I agree that this court is not obligated to review state constitutional claims that are presented to it without any analysis of the relevant state constitutional provision and the relevant authorities. Indeed, we routinely decline to consider such claims as inadequately briefed. See State v. Perez, 218 Conn. 714, 723, 591 A.2d 119 (1991) (state constitutional claim inadequately briefed because defendant failed to provide any independent analysis of Connecticut constitutional language, history, tradition and policy); State v. Mooney, 218 Conn. 85, 89 n.5, 588 A.2d 145, cert. denied, 502 U.S. 919, 112 S. Ct. 330, 116 L. Ed. 2d 270 (1991) (state constitutional claim inadequately briefed because defendant provided no separate analysis of state constitution); see also Commissioner of Environmental Protection v. Connecticut Building Wrecking Co., 227 Conn. 175, 181 n.4, 629 A.2d 1116 (1993) (state constitutional claim inadequately briefed where argument comprised of one sentence in brief, relied on one case and was devoid of analysis). The defendant’s state constitutional claim in this case, however, does not fall within that category.

A careful review of the defendant’s briefs reveals that his analysis of his state constitutional claim was more than cursory. In his main brief, the defendant identifies the state constitutional provision on which he relies and identifies and discusses the relevant state and federal precedent on the issue of standing to challenge the legality of searches and seizures by police. His discussion includes the evolution of federal law on the standing issue, and the history of this state’s approach to the exclusion of illegally obtained evidence generally and to the standing question specifically. Furthermore, the defendant provides citation to and urges us to consider the reasoning of several state courts that have continued to adhere to the automatic standing doctrine under state law. Additionally, the defendant argues that extending the reaches of the state exclusionary rule to persons in his circumstances is warranted in order effectively to remedy and deter illegal police behavior, which might otherwise go unreviewed.

In light of these points in the defendant’s briefs, I cannot agree with the majority and the state that the defendant failed to offer “any of the substantive analysis” required for our review of state constitutional claims. Although we have articulated several “tools of analysis” that are to be considered “to the extent applicable” in construing the state constitution; State v. Geisler, 222 Conn. 672, 685-86, 610 A.2d 1225 (1992); I have never understood these criteria to be anything other than guidelines for the benefit of counsel, who can use them adequately to alert us to a serious state constitutional claim and provide us with a framework within which to evaluate it. These areas of analysis normally provide informative and even compelling sources of authority, and the comprehensive, organized exploration of them by the parties is of substantial benefit to the court and is to be encouraged. I do not believe, however, that by identifying these criteria, we established a rigid formula, the components of which must be formally and specifically invoked in order for a claim to be reviewed, despite the functional sufficiency of the analysis presented. To apply them as such would elevate form over substance, and in no case decided since Geisler have we indicated that they are to be applied as technical briefing requirements. In fact, this court has never directly and specifically delineated what constitutes a minimally adequate analysis of this type of claim.

The defendant in this case has briefed several of the areas of analysis normally considered important in state constitutional claims. In light of his efforts, and the lack of specific standards in this area, I believe that the majority’s conclusion that the defendant’s presentation of the automatic standing issue does not minimally suffice for review is much too restrictive. In my view, the defendant’s automatic standing claim has been sufficiently briefed for us to reach that issue. In the same vein, however, and in accordance with the principle that the proper foundation for judicial resolution of claims is full advocacy of both sides of the relevant issues, I would review the defendant’s claim only after permitting the state to submit a supplemental brief on this issue.

Finally, although it cannot obviate the need for adequate notice and analysis of any state constitutional claim, I wish to underscore the importance of the automatic standing issue, particularly in light of the underlying facts of this case. A standing requirement in this context operates to regulate who may invoke the state exclusionary rule and, therefore, to restrict or expand the extent to which allegedly illegal search and seizure conduct of the police escapes judicial review. There are, of course, costs and benefits to be evaluated in connection with any standing rule, and I withhold judgment until we have the benefit of full briefing of this issue by the state. I note, however, that I am particularly troubled by the context of the search sought to be challenged in this case. It is undisputed that the police, on the barest suspicion, the most significant component of which appears to have been the “character” of this inner city neighborhood, entered a private dwelling, seized at least one of its occupants, and searched for and seized items within it. I am concerned that the people in less than affluent, urban neighborhoods of this state, where a higher population density provides for different patterns of comings and goings than in their suburban counterparts, are being and will continue to be subjected, on the basis of equivocal evidence, not only to invasive, unreasonable police conduct, but also to the lack of a meaningful, effective opportunity to remedy and deter that conduct. The possibility that these citizens are not equally enjoying the constitutional protection against unreasonable searches and seizures, or the ability to challenge allegedly illegal police conduct, makes delay in resolving the issues presented in this case unacceptable.

In my view, the defendant’s efforts to raise and brief the automatic standing issue under the state constitution were sufficient to put that issue before us. I would permit the state another opportunity to brief this issue so that we may conclusively resolve it.

Accordingly, I respectfully dissent.

       General Statutes § 2 la-278 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person one or more preparations, compounds, mixtures or substances containing an aggregate weight of one ounce or more of heroin, methadone or cocaine or an aggregate weight of one-half gram or more of cocaine in a free-base form or a substance containing five milligrams or more of lysergic acid diethylamide, except as authorized in this chapter, and who is not, at the time of such action, a drug-dependent person, shall be imprisoned for a minimum term of not less than five years nor more than twenty years; and, a maximum term of life imprisonment. The execution of the mandatory minimum sentence imposed by the provisions of this subsection shall not be suspended except the court may suspend the execution of such mandatory minimum sentence if at the time of the commission of the offense (1) such person was under the age of eighteen years or, (2) such person’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution.”
      Cocaine in a free-base form is commonly known as “crack” cocaine.
      General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The defendant was sentenced to concurrent prison terms of thirteen years on the charge of possession of crack cocaine with the intent to sell by a person who is not drug-dependent and ten years on the charge of possession of heroin with the intent to sell.

       The cocaine seized from the 33 Irion Street apartment was 99.7 percent pure cocaine and weighed a total of 6.5 grams.

       The total weight of the heroin seized from the 33 Irion Street apartment was less than one tenth of one ounce.

       Article first, § 7, of the Connecticut constitution provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or 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.”
      Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”

       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.”

       It is not entirely clear from the record of the proceedings in the trial court whether this claim was raised by the defendant. On appeal, however, the state does not contend either that the defendant failed to raise the claim below or that the record is inadequate for our review of the claim. Accordingly, we treat the defendant’s claim as having been raised in the trial court.

       The evidentiary hearing on the defendant’s motion to suppress was conducted after the jury had heard testimony from one state’s witness, Thomas DiStasio, a draftsman in the Waterbury tax assessor’s office, who testified concerning the location of 33 Irion Street. At the conclusion of DiStasio’s testimony, the trial court excused the jury and commenced the hearing on the defendant’s motion to suppress. Ricci was the lone state’s witness at the suppression hearing. The defendant called no witnesses in support of his suppression motion, choosing instead to rely on his cross-examination of Ricci. At the conclusion of Ricci’s testimony, the trial court denied the defendant’s motion to suppress.

       In Oquendo, we refused to adopt, for purposes of the state constitution, the standard established by the United States Supreme Court to determine when a seizure has occurred under the fourth amendment. See California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991) (seizure for purposes of fourth amendment requires either physical force or submission to assertion of authority). The state now asks us to reject the test enunciated in Oquendo in favor of the standard applicable under the federal constitution. Because we agree with the state that the defendant was not seized outside 33 Irion Street under the standard set forth in Oquendo, we need not reconsider whether our test should be modified.

       As previously indicated, the defendant did not call any witnesses at the suppression hearing. See footnote 9. We note, however, that the defendant’s trial testimony is inconsistent with his claim that he was seized by the police outside 33 Irion Street. At trial, the defendant testified that he had arrived in Waterbury from his home in New York on the morning of September 16, 1992, and parked in front of 33 Irion Street. The defendant stated that he had not stopped outside 33 Irion Street to speak to anyone but, rather, had proceeded directly to the front door of the ground level apartment, where he was allowed entry by one of the apartment’s occupants. The defendant further testified that Ricci and other police officers had arrived a few minutes thereafter. According to the defendant, he had not seen Ricci or any other police officer until that time. Thus, under the defendant’s sworn version of the facts, he never observed Ricci or Ricci’s cruiser prior to entering the apartment at 33 Irion Street. If the defendant’s testimony is to be believed, it can hardly be argued that he was seized at any time prior to his detention by the police inside the apartment. In light of the fact, however, that the trial court’s ruling on the defendant’s suppression motion was based solely on the evidence adduced at the suppression hearing, and because the state does not contend that the defendant’s suppression claim is foreclosed by his trial testimony; cf. State v. Person, 236 Conn. 342, 346-51, 673 A.2d 463 (1996); we limit our review of the defendant’s claim to the evidence relied upon by the trial court in deciding the defendant’s suppression motion.

       At the conclusion of the evidentiary hearing on the defendant’s suppression motion, the trial court stated in relevant part: “Based on the evidence I have heard, based on the testimony of [Ricci], I have to agree with the state’s position that there [was] no seizure involved outside of the building. There was absolutely no show of force. The only indication from [the] police officer’s testimony with respect to what action he was taking [was that he was] going toward the individuals involved. One initially walked off right from the beginning when he saw the officer. The defendant, or the individual [whom Ricci] identified as the defendant, simply walked into an apartment room. There was no indication by the defendant’s conduct that he thought he should stop or that he was being stopped by [the] police. And, there was absolutely no testimony from [the] officer indicating any kind of conduct that would constitute a seizure under our law as it currently stands.”

       At the suppression hearing, Ricci, who had previously been assigned to the police department’s vice and intelligence division, testified that the area he had been patrolling when he encountered the defendant is often frequented by drug traffickers, and that he has personally conducted investigations at the 33 Irion Slreet residence, which he characterized as a known haven for drug users. Ricci further explained that he had become suspicious of the defendant when he saw the defendant holding a plastic “sandwich-type” baggie, commonly used by street-level drug dealers to store narcotics, after the unidentified male with whom the defendant had been conversing hurriedly left the area as Ricci’s cruiser approached.

       In response to the question of how much time had elapsed from when he saw the defendant until he exited his cruiser, Ricci testified as follows: “It was seconds. I couldn’t estimate. I know it wasn’t a minute or anything. It was seconds, where it would take me for a hundred feet or so.” Later, Ricci testified that he did not know how fast he was driving as he approached the defendant in his cruiser.

       For example, a car traveling at twelve miles per hour would cover 100 feet in just under six seconds.

       The defendant also claims, for the first time on appeal, that his identification should also be suppressed as the fruit of an illegal seizure within the apartment. The record, however, fails to disclose any indication of when the police identified the defendant. Thus, the record is insufficient to evaluate this unpreserved claim and, accordingly, we decline to review it under the first prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

       “ ‘[A]bsent consent to entry or exigent circumstances, ajudiciai determination of probable cause must stand in between the police and the door of a person’s home, whether the object of an entry is to search and seize or to arrest.’ ” State v. Geisler, 222 Conn. 672, 682, 610 A.2d 1225 (1992). The state contends that Ricci’s warrantless entry into the apartment at 33 Mon Street was justified by probable cause and exigent circumstances. We do not reach the state’s argument in light of our conclusion that the defendant does not have standing to challenge the warrantless entry.

       In Joyce, we articulated the test for standing under article first, § 7, of the Connecticut constitution. The test is the same under the United States constitution. See Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S. Ct. 1684, 109 L. Ed. 2d 85 (1990) (person claiming protection of fourth amendment must have expectation of privacy in invaded place that society is prepared to recognize as reasonable).

       “Legitimate expectations of privacy derive from ‘concepts of real or personal property law or [from] understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.’ Rakas v. Illinois, supra, [439 U.S.] 144 n.12. Of course, one need not have an ‘untrammeled power to admit and exclude’ in order to claim the protection of the fourth amendment, so long as the place involved is one affording an expectation of privacy that society regards as reasonable.” State v. Mooney, supra, 218 Conn. 95-96.

       It was revealed at trial that the defendant’s backpack contained some clothing, deodorant and certain other unspecified personal belongings.

       On appeal, the state has not challenged the truthfulness of this testimony, nor has it argued that we should refrain from considering the additional evidence in reviewing the defendant’s claim of standing.

       We need not decide, therefore, the extent to which the “reasonable expectation of privacy” test may be broader under article first, § 7, of our state constitution than it is under the fourth amendment to the federal constitution.

       The dissent’s assertion that we have declined to address the defendant’s state constitutional claim regarding standing is incorrect. As we have indicated, we conclude that the defendant has properly raised and briefed the question of whether he may be entitled to a broader interpretation of the “reasonable expectation of privacy” test under the state constitution than he is under the federal constitution. We also conclude, however, that the defendant’s state constitutional claim, even construed most generously, cannot reasonably be interpreted as urging us to adopt the doctrine of automatic standing under the state constitution.
      In his initial brief, the defendant’s entire claim under the state constitution is that article first, § 7, affords a more expansive interpretation of the reasonable expectation of privacy standard than does the federal constitution. Indeed, his sole reference to automatic standing is the observation that “[t]o date, the court has not joined with some other state courts of last resort that hold that state constitutional or statutory provisions require continued adherence to the standing doctrine of Jones [v. United States, 363 U.S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960)],” followed by citations to cases from four of those jurisdictions.
      It is only in his reply brief that the defendant recharacterizes his claim as asserting that “the Connecticut constitution affords greater rights to its citizens to challenge seizures under the ‘automatic standing’ doctrine first enunciated in Jones.” This doctrine, which confers standing on a defendant who is legitimately on the invaded premises or who has been charged with an offense of which possession of the seized item is an element, was adopted for fourth amendment purposes by the United States Supreme Court in Jones v. United States, supra, 363 U.S. 257, but was later rejected in favor of the “reasonable expectation of privacy” test. United States v. Salvucci, 448 U.S. 83, 92-93, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). Although we previously followed Jones in applying the automatic standing rule to claims under the federal constitution; see State v. McLucas, 172 Conn. 542, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S. Ct. 174, 54 L. Ed. 2d 126 (1977); we abandoned the test following the Salvucci decision. State v. Altrui, 188 Conn. 161, 179 n.6, 448 A.2d 837 (1982). As the defendant notes in passing, we have never had occasion to consider whether our state constitution embraces the doctrine of automatic standing set forth in Jones.

      We decline the defendant’s belated invitation to decide this question, which, as the defendant himself concedes, was never raised in the trial court. Although the defendant asserts in his reply brief that he did, in fact, raise the claim in his main brief, we agree with the state that the issue was not adequately raised or briefed. “ ‘It is a well established principle that arguments cannot be raised for the first time in a reply brief. . . .’ ” Williams

        Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 593-94 n.26, 657 A.2d 212 (1995). At no point in his main brief did the defendant clearly indicate that we should adopt a rule of automatic standing for purposes of the state constitution, nor did he engage in any of the substantive analysis that is a necessary prerequisite to our consideration of state constitutional claims. See, e.g., State v. Perez, 218 Conn. 714, 723-24, 591 A.2d 119 (1991). Thus, contrary to the dissent’s assertion, the defendant’s passing reference to the fact that this court has not heretofore considered the automatic standing question cannot suffice to satisfy even the most minimal standard concerning the raising and briefing of constitutional claims. Accordingly, although we agree that the question of whether our constitution embodies the concept of automatic standing is a significant one, we conclude that its importance dictates that we not address it until it is properly before us.

       The fifth amendment to the United States constitution provides in relevant part: “No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The prohibition against double jeopardy is applicable to the states through the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).
      The defendant also claims a violation under the due process guarantee of article first, § 9, of the Connecticut constitution, which we have construed to prohibit double jeopardy. State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). Because the defendant has provided no independent analysis of his double jeopardy claim under the state constitution, however, we consider his claim under the federal constitution only.

       In Golding, we held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.

       It is not disputed that the charges, which arise from the defendant’s simultaneous possession of the two different types of narcotics, stem from the same act.

       We reached a different conclusion in State v. Rawls, supra, 198 Conn. 111, wherein we held that the simultaneous possession of cocaine and heroin did not give rise to two separate possessory offenses under General Statutes § 19-481 (a), now codified as General Statutes § 21a-279 (a). In Rawls, we concluded that multiple convictions were barred under § 21a-279 (a) because “[njeither the language of [§ 21a-279 (a)] nor its legislative history indicates an intention to authorize multiple punishment for the simultaneous possession of more than one narcotic.” State v. Rawls, supra, 121. We have no occasion to reconsider our determination in Rawls in this case.

       The defendant does not challenge the sufficiency of the state’s proof that he possessed the narcotics.

       Stephens testified that consumers of crack cocaine generally use pipes to smoke the drug, while heroin users frequently use needles to inject the narcotic.

       The jury was also free to reject the defendant’s testimony that he never possessed the narcotics seized from the 33 Irion Street apartment. See, e.g., State v. Medina, 228 Conn. 281, 310, 636 A.2d 351 (1994) (trier of fact may reject or accept, in whole or in part, testimony of witness).

       The automatic standing doctrine was adopted for purposes of the federal exclusionary rule in Jones v. United States, supra, 363 U.S. 257, but subsequently abandoned in favor of the more restrictive “reasonable expectation of privacy” test. See United States v. Salvucci, 448 U.S. 83, 92-93, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); Rakas v. Illinois, supra, 439 U.S. 143. Under the automatic standing standard, houseguests and casual visitors arguably would have the right to claim the protection of the exclusionary rule under the state constitution.

       Specifically, the defendant argues that the federal standard provides only a minimum national standard that “ ‘does not inhibit state governments from affording higher levels of protection for such rights’ State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992); Cologne v. Westfarms Associates, 192 Conn. 48, 57, 469 A.2d 1201 (1984); that an “independent analysis under the Connecticut constitution” affords him standing in the circumstances of this case; and that “although ... at trial [he] did not argue a different standard under the state constitution," review of his claim on appeal for a different standard under the state constitution is appropriate under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). (Emphasis added.)

       See, e.g., Commonwealth v. Podgurski, 386 Mass. 385, 389, 391 n.11, 436 N.E.2d 150 (1982), cert. denied, 459 U.S. 1222, 103 S. Ct. 1167, 75 L. Ed. 2d 464 (1983); State v. Settle, 122 N.H. 214, 218, 447 A.2d 1284 (1982); State v. Alston, 88 N.J. 211, 225-27, 440 A.2d 1311 (1981); State v. Scott, 59 Or. App. 220, 223-24, 650 P.2d 985 (1982). In his reply brief, the defendant includes additional authority in support of his claim, referring the court to “Commonwealth v. Amendola, 406 Mass. 592, 595-601, 550 N.E.2d 121 (1990) (principal concerns expressed in Jones remain valid despite shift in [United States] Supreme Court thinking); State v. Wood, [148 Vt. 479, 489, 536 A.2d 902 (1987)] (state constitution premises right upon an objectively defined relationship between person and item seized or place searched, as opposed to subjective evaluation of the legitimacy of the person’s expectation of privacy in an area); State v. Owen, 453 So. 2d 1202, [1204-205 (La. 1984)] (specific language in state constitution confers standing on ‘any person adversely affected’ by a search); Commonwealth v. Sell, [504 Pa. 46, 66, 470 A.2d 457 (1983)]; (automatic standing is a ‘salutary’ rule which protects the rights of defendants and eliminates wasteful preliminary showings of standing in pretrial hearings) . . . .”

       In Geisler, we articulated the following “tools of analysis” to be used in construing the state constitution: “(1) the ‘textual’ approach — consideration of the specific words in the constitution; (2) holdings and dicta of this court and the Appellate Court,; (3) federal precedent; (4) the ‘sibling’ approach — examination of other states' decisions; (5) the ‘historical’ approach — including consideration of the historical constitutional setting and the debates of the framers; and (6) economic and sociological, or public policy, considerations.” State v. Linares, 232 Conn. 345, 379, 655 A.2d 737 (1995).


source: Caselaw Access Project

author: NORCOTT, J.

license: Public Domain

text:
    METROPOLITAN DISTRICT COMMISSION v. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, COUNCIL 4, LOCAL 184
    (15252)
    Peters, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued February 14
    officially released May 21, 1996

      Anthony J. Palermino, with whom, on the brief, was Gary R. Atkinson, for the appellant (plaintiff).

      J. William Gagne, Jr., with whom, on the brief, was Gregory C. Norsigian, for the appellee (defendant).
   NORCOTT, J.

The principal issue in this appeal is whether an arbitration panel’s failure to comply with a regulation directing the panel to meet in executive session prior to issuing its unanimous arbitration award is an adequate ground pursuant to General Statutes § 52-418 for a trial court to vacate the award. We conclude that, in the absence of a showing of prejudice, such a failure is not a proper ground for which to vacate the award.

The plaintiff, the metropolitan district commission, appeals, upon our grant of certification, from the judgment of the Appellate Court, which reversed the decision of the trial court vacating an arbitration award pursuant to § 52-418. Metropolitan District Commission v. AFSCME, Council 4, Local 184, 37 Conn. App. 1, 654 A.2d 384 (1995). The plaintiff claims that the arbitrators’ failure to comply with § 31-91-45 (a) of the Regulations of Connecticut State Agencies, namely, its failure to hold an executive session, was arbitral misconduct and, therefore, required that the arbitrators’ award be vacated. We affirm the judgment of the Appellate Court.

The facts relevant to this appeal are not in dispute. In January, 1985, the defendant, American Federation of State, County and Municipal Employees, Council 4, Local 184, filed a grievance on behalf of eleven employees of the plaintiff, requesting that the position of specialist on the night emergency crew be reclassified from labor grade five to labor grade seven. The defendant asserted that since its last classification, the specialist position had been assigned numerous additional duties, requiring additional skill and training and subjecting a person holding this position to increased risk of injury.

Pursuant to the collective bargaining agreement, the defendant submitted its request for reclassification to the plaintiffs personnel department. The plaintiff denied the defendant’s request and the defendant demanded arbitration according to the terms of the collective bargaining agreement. A hearing was held before a three person arbitration panel, which consisted of a labor representative, a management representative and a neutral member. The panel framed the issue to be decided as follows: “Has the Metropolitan District Commission properly classified the Specialist LG-5 (Shift Coverage) position? If not, what shall be the remedy?”

On July 19, 1990, the panel issued a unanimous decision in favor of the defendant. The panel concluded that the additional duties required to be performed by those employed as labor grade five specialists were significant enough to require a reclassification and directed the plaintiff to reclassify the position to labor grade seven.

The plaintiff petitioned the Superior Court to vacate the award, claiming that its rights had been prejudiced by the arbitration panel’s failure to hold an executive session pursuant to § 31-91-45 (a); see footnote 3; and, therefore, that the award should be vacated pursuant to § 52-418. No evidence of the nature of the claimed prejudice was presented to the trial court. The defendant moved for confirmation of the arbitration award pursuant to General Statutes § 52-417. The parties stipulated that the “three members of the arbitration panel . . . had no three-way discussions, either telephonically or in person, before the arbitration decision and award was issued.” After a hearing on the cross applications, the trial court determined that the arbitration panel, by failing to hold an executive session, had acted in violation of § 31-91-45 (a) and, therefore, vacated the award.

The defendant appealed to the Appellate Court, which concluded that there had been insufficient evidence before the trial court to support a finding that the plaintiff had been prejudiced by the arbitration panel’s failure to hold an executive session pursuant to § 31-91-45 (a) and, therefore, determined that the trial court improperly had vacated the arbitration award pursuant to § 52-418. Metropolitan District Commission v. AFSCME, Council 4, Local 184, supra, 37 Conn. App. 6-7. This certified appeal followed. See footnote 2. We agree with the Appellate Court.

As the Appellate Court correctly noted, our courts have “wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation.” (Internal quotation marks omitted.) O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145, 523 A.2d 1271 (1987). “Courts favor arbitration as a means of settling differences .... [I]ts autonomy requires a minimum of judicial intrusion.” (Citation omitted; internal quotation marks omitted.) AFSCME, AFL-CIO, Council 15 v. New Britain, 206 Conn. 465, 469, 538 A.2d 1022 (1988). Judicial review of consensual arbitral awards, therefore, is of limited scope. See Bodner v. United Services Automobile Assn., 222 Conn. 480, 501, 610 A.2d 1212 (1992) (authority to arbitrate generally carries with it power to decide, with finality, all issues of fact or law in proceedings); Hartford v. State Board of Mediation & Arbitration, 211 Conn. 7, 14, 557 A.2d 1236 (1989) (“ ‘when arbitration is consensual, rather than statutorily imposed, judicial review is limited in scope’ ”); Bruno v. Dept. of Consumer Protection, 190 Conn. 14, 18, 458 A.2d 685 (1983) (review limited because arbitration is creature of contract).

The scope of judicial review in an arbitration action is expressly limited by the terms of § 52-418. See footnote 1. In the absence of a showing of a violation of the statute, the courts should not interfere in the arbitral decision. Diamond Fertiliser & Chemical Corp. v. Commodities Trading International Corp., 211 Conn. 541, 546-47, 560 A.2d 419 (1989); O & G/O’Connell Joint Venturer. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 145. In addition, “[e]very reasonable presumption and intendment will be made in favor of the [arbitral] award and of the arbitrators’ acts and proceedings.” (Internal quotation marks omitted.) AFSCME, AFL-CIO, Council 15 v. New Britain, supra, 206 Conn. 472. Thus, as the party challenging the award, the plaintiff bears the burden of producing evidence sufficient to demonstrate a violation of § 52-418. O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 145-46.

The relevant portion of § 52-418 provides that the court shall vacate an award if it finds that the arbitrators have engaged in “any other action by which the rights of any party have been prejudiced.” The Appellate Court rested its decision on the fact that there was no evidence that the plaintiff had been prejudiced by the arbitration panel’s violation of § 31-91-45 (a). The plaintiff argues that the arbitration panel’s failure to follow the regulation to meet in executive session is per se prejudicial. The plaintiffs argument is essentially that the regulation is mandatory because it is substantive and, therefore, that we should presume that failure to comply with the regulation has prejudiced the plaintiff. We do not agree with the plaintiff that § 31-91-45 (a) is mandatory. Rather, we conclude that it is directory and, therefore, that in order to vacate an award under § 52-418 on the basis of failure to comply with § 31-91-45 (a), the plaintiff must show prejudice, which, in the present case, it has failed to do.

Well established principles of statutory construction govern our determination of whether a statutory or regulatory provision is mandatory or directory. See Smith v. Zoning Board of Appeals, 227 Conn. 71, 89, 629 A.2d 1089 (1993), cert. denied, 510 U.S. 1164, 114 S. Ct. 1190, 127 L. Ed. 2d 540 (1994) (“[i]n construing regulations, the general rules of statutoiy construction apply”). “Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993) .... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). “ ‘The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. . . . If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words.’ ” Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). These same principles of statutoiy construction are applicable in determining whether a provision in a regulation is mandatory or directory.

We begin our analysis with the language of the regulation. Subsection (a) of § 31-91-45 provides in part that “panel members will meet in an executive panel session to decide the matter submitted.” (Emphasis added.) Although the use of “will” rather than “may” suggests that the regulation is intended to be more than permissive, it does not compel the conclusion that § 31-91-45 (a) is mandatory. We have said that the use of mandatory language, such as “shall,” is significant in our determination, but it does not invariably establish a mandatory duty. Oller v. Oller-Chiang, 230 Conn. 828, 838, 646 A.2d 822 (1994). In the present case, the regulation uses the word “will” in subsection (a) in connection with an executive session, but uses the word “shall” in subsections (b) and (c). See footnote 3. We are unable to discern from this juxtaposition whether the use of the word “will” was intended to be mandatory or directory, thus, the language of the regulation is inconclusive.

The more significant consideration in our determination of whether a provision is mandatory or directory is whether the mode of action prescribed is the essence of the thing to be accomplished, or is designed to secure order, system and dispatch in the proceedings. The obvious purpose of § 31-91-45 (a) is to ensure meaningful deliberation of the issues involved in a case. Although an executive session to discuss the issues presented is generally the most desirable and appropriate way to accomplish this purpose, we are not persuaded that it is essential in all circumstances in order fairly to resolve a case. We can envision circumstances, such as if the issues are few and uncomplicated and the panel members are in agreement, in which the requirement of a formal executive session would be of negligible benefit. We have long held that although regulations generally are to be strictly construed, it is important not to elevate form over substance. See Newman v. Newman, 235 Conn. 82, 98-99, 663 A.2d 980 (1995); State v. Day, 233 Conn. 813, 832, 661 A.2d 539 (1995); Commission on Human Rights & Opportu nities v. Windsor Hall Rest Home, 232 Conn. 181, 188, 653 A.2d 181 (1995); State v. Chapman, 227 Conn. 616, 621, 632 A.2d 674 (1993). Moreover, we must presume that arbitrators will act responsibly in discharging their duties, including reviewing the evidence and arguments presented and pursuing discussion of the case with other members of the panel as is necessary to reach a thorough and fair resolution of the case. Furthermore, nothing precludes any arbitration panel member from forcing additional deliberations by refusing to execute the proposed award. Permitting arbitrators to exercise their discretion over this aspect of the arbitral process is consistent with this presumption and also with the broader goals of arbitration, namely, informality and efficiency. On the basis of the language and purpose of the regulation, we conclude that its prescription of an executive panel session is directory.

In light of our conclusion that the regulation is directory, the plaintiffs claim that the panel’s failure to hold an executive panel session is “per se” prejudicial and, therefore, that the award should properly be vacated without regard to actual prejudice must fail. Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969), cert. denied, 398 U.S. 938, 90 S. Ct. 1841, 26 L. Ed. 2d 270 (1970). Under the limited scope of review set forth in § 52-418, the plaintiff bears the burden of demonstrating that it was prejudiced by the panel’s failure to deliberate in an executive session. O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 145-46. In the present case, “[t]he only evidence before the court was the stipulation of the parties that no three-way discussions were held by the members of the arbitration panel.” Metropolitan District Commissions. AFSCME, Council 4, Local 184, supra, 37 Conn. App. 6-7. The panel’s decision was unanimous and the plaintiff presented no evidence to suggest that any of the panel members who signed the arbitration award did not fully consider the case or was not satisfied with the level of deliberation that had occurred. We conclude, therefore, that the plaintiff failed to meet its burden of proof with regard to prejudice from the panel’s actions and that, in the absence of such evidence, the Appellate Court properly required the trial court to presume that the actions of the arbitration panel were proper.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 52-418 provides in pertinent part: “(a) Upon the application of any party to an arbitration, the superior court . . . shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       We certified the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the arbitrators’ failure to comply with § 31-91-45 (a) of the Regulations of Connecticut State Agencies did not require that the arbitrators’ award be vacated?” Metropolitan District Commission v. AFSCME, Council 4, Local 184, 233 Conn. 904, 90-L-905, 657 A.2d 643 (1995).

       Section 31-91-45 of the Regulations of Connecticut State Agencies provides: “Executive panel sessions; form of award
      “(a) As promptly as possible after the date of the formal hearing and the receipt of the briefs, where the parties elect to submit briefs, the panel members will meet in an executive panel session to decide the matter submitted.
      “(b) Oral awards shall be rendered upon mutual request of the parties. Whether or not an oral award has been rendered, an award shall be reduced to writing and signed by the members of the panel.
      “(c) Decisions shall be made by majority vote of the panel members. A panel member may express his disapproval of the majority decision by adding the word ‘dissenting’ after his signature on the award, or, said panel member may also prepare a dissenting opinion which shall be sent to the board’s office and shall be made part of the award proper.”

       Because we conclude that the regulation is directory, we do not decide whether the panel’s failure to comply with a mandatory regulation would be per se prejudicial.

       In determining whether a provision is mandatory, it is also appropriate to consider whether there is language in the regulation that invalidates action taken in violation of the provision. See Katz v. Commissioner of Revenue Services, supra, 234 Conn. 617. Such language is absent in the present case.

       Our conclusion is consistent with the dictum in O & G/O’Connett Joint Venture, in which we indicated that holding hearings or conducting deliberations in the absence of a member of an arbitration panel could warrant vacating an award. See O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, supra, 203 Conn. 147, citing Continental Bank Supply Co. v. International Brotherhood of Bookbinders, 239 Mo. App. 1247, 1258, 201 S.W.2d 531 (1947). That suggestion was made in connection with a Missouri case in which a single arbitrator had signed the award and the other two members had never even considered the matter. Such factual circumstances are distinguishable from those in the present case, in which the panel members were unanimous.