author: MCDONALD, C. J.

text:
    STATE OF CONNECTICUT v. DION M. HENRY
    (SC 15945)
    McDonald, C. J., and Katz, Palmer, Vertefeuille and Callahan, Js.
    Argued January 19
    officially released May 19, 2000

      Martin Zeldis, assistant public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James G. Clark, senior assistant state’s attorney, for the appellee (state).

       May 19, 2000, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

MCDONALD, C. J.

After a jury trial, the defendant, Dion M. Henry, was found guilty of murder in violation of General Statutes §§ 53a-8 and 53a-54a, attempted murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-54a, conspiracy to commit murder in violation of General Statutes §§ 53a-48 and 53a-54a, carrying a firearm without a permit in violation of General Statutes § 29-35, and criminal possession of a pistol by a previously convicted felon in violation of General Statutes § 53a-217. The trial court rendered a judgment of conviction, and the defendant appealed to the Appellate Court. We transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant’s brother, Terry Portee, had an ongoing dispute with Harry Lamont Carter. On August 16, 1995, as a result of that dispute, Carter verbally confronted the defendant on a New Haven street and shot at the defendant as he tried to drive away. On August 17,1995, Carter shot at the defendant and Portee as they were walking along a street in New Haven.

On the night of August 17, 1995, the defendant purchased a nine millimeter pistol on the street. The defendant had a criminal conviction for a class C felony and did not have a permit to carry a pistol. Some time later, at approximately 12:30 a.m. on August 18, 1995, the defendant picked up Portee in his car. Portee was carrying a .32 caliber pistol and the defendant was in possession of the nine millimeter pistol. The two then stopped to obtain some ammunition for the defendant’s gun. Later, they picked up Michael Beverley and drove to 74 Orchard Street in New Haven to see Justin Brown, a friend of Carter’s. They planned to visit Brown in an effort to settle their dispute with Carter. During the drive, Portee stated that if they saw Carter, they would start shooting.

The defendant parked his car in front of 21 Orchard Street. The defendant and Portee then proceeded to Brown’s apartment at 74 Orchard Street, where they rang the bell and received no answer. As they were leaving the building, they encountered Carter, Nicole Moore and Richard Massenburg walking down the driveway of 74 Orchard Street. Portee and the defendant began to shoot at them. Portee was the first to shoot, and the defendant began shooting immediately thereafter. After being shot several times, Carter took out a gun, fired one shot and started to flee. The defendant pursued Carter and continued to fire at him until his semiautomatic pistol jammed.

In the melee, Moore was fatally wounded by a bullet from Portee’s gun. Carter also was shot several times, but survived the attack. When the police arrived at the scene, the defendant was found hiding under a truck at 66 Orchard Street. The nine millimeter pistol involved in the shooting also was found under the truck.

The jury found the defendant guilty of murder, attempted murder, conspiracy to commit murder, carrying a pistol without a permit, and criminal possession of a pistol by a previously convicted felon. This appeal followed.

On appeal, the defendant claims that the trial court: (1) improperly instructed the jury on the criminal liability of an accessory to murder; (2) improperly admitted an out-of-court statement made by a codefendant; (3) improperly denied the defendant’s motion for judgment of acquittal as to the charge of conspiracy to commit murder; and (4) violated the defendant’s constitutional right to due process of law by failing to put him to plea on the charge of criminal possession of a pistol. We reject each of these claims and affirm the defendant’s convictions.

I

The defendant first claims that the trial court improperly instructed the jury that he could be found guilty as an accessory to murder even though Portee, the principal, had shot and killed an unintended victim. The defendant argues that the doctrine of transferred intent should not apply to accessory liability. The state counters that the murder statute, § 53a-54a (a), incorporates the doctrine of transferred intent and holds a principal hable for the death of the unintended victim. The state further argues that because principals and accessories to murder are treated alike under § 53a-8 (a), both a principal and an accessory are subject to the doctrine of transferred intent. We agree with the state.

The defendant did not request an instruction on the doctrine of transferred intent or take an exception to the court’s instructions, and, therefore, he asks this court to review his unpreserved claim under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Under Golding, “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.) Id., 239-40. “The first two steps in the Golding analysis address the review-ability of the claim, while the last two steps involve the merits of the claim.” State v. Beltran, 246 Conn. 268, 275, 717 A.2d 168 (1998). We review the defendant’s claim because the record is adequate for review and the claim is constitutional in nature. See State v. Hinton, 227 Conn. 301, 308-309, 630 A.2d 593 (1993) (reviewing similar claim under Golding). The defendant’s claim fails under Golding’s third prong, however, because we conclude that the trial court’s instructions to the jury were proper.

The doctrine of transferred intent imposes the same criminal liability on a principal for murdering an unintended victim as if the principal had murdered his intended victim. General Statutes § 53a-54a (a) provides that a person may be guilty of murder when acting “with intent to cause the death of another person, he causes the death of such person or of a third person . . . .” (Emphasis added.) “[T]he intentional murder statute . . . specifically provide [s] for [the principal’s] intent to be transferred from the target of [his] conduct to an unintended victim.” State v. Hinton, supra, 227 Conn. 316.

Accessory liability is governed by § 53a-8 (a), which provides that “[a] person, acting with the mental state required for commission of an offense, who . . . intentionally aids another person to engage in conduct which constitutes an offense shall be criminally hable for such conduct and may be prosecuted and punished as if he were the principal offender.” We have held that “a conviction under § 53a-8 requires proof of a dual intent, i.e., that the accessory have the intent to aid the principal and that in so aiding he intend to commit the offense with which he is charged. . . . State v. Foster, 202 Conn. 520, 525-26, 522 A.2d 277 (1987).” (Emphasis in original; internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 621, 725 A.2d 306 (1999).

We conclude that an accessory who intends to aid a principal in committing murder and who possesses the intent to murder a person is criminally hable for the killing of an unintended third party by the principal. In order for the defendant to be hable as an accessory to murder in this case, the state was required to prove that the defendant (1) intended to aid the principal in the killing of the intended victim and (2) intended that someone be killed. In State v. Cots, 126 Conn. 48, 58-59, 9 A.2d 138 (1939), a case decided before the adoption of the Penal Code in 1969, we discussed accessorial liability for murder. We looked to “the universally accepted rule” that “[a]h who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design.” (Internal quotation marks omitted.) Id., 59. We later discouraged using this principle injury instructions for penal code accessory liability because, in isolation, it might lead a jury to believe it could convict the defendant as an accessory even though he himself did not act with the requisite intent to kill. See State v. Diaz, 237 Conn. 518, 536, 679 A.2d 902 (1996). Since the jury instructions in Diaz were replete with reference to the burden of the state to prove the defendant’s intent to kill, we found no cause to reverse the defendant’s conviction. Id., 537-41. More recently, in State v. Foster, supra, 202 Conn. 532, we explained: “Connecticut long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the puipose of determining criminal responsibility. See State v. Gargano, 99 Conn. 103, 109, 121 A. 657 (1923); State v. Hamlin, 47 Conn. 95, 118 (1879); General Statutes (1875 Rev.) p. 545. The modem approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime.” (Internal quotation marks omitted.)

“The established rule, as it is usually stated by courts and commentators, is that accomplice liability extends to acts of the principal . . . which were a ‘natural and probable consequence’ of the criminal scheme the accomplice encouraged or aided.” 2 W. LaFave & A. Scott, Substantive Criminal Law, Limits of Accomplice Liability (1986) § 6.8 (b), p. 157. “[T]he aider and abettor is responsible not only for the success of the common design, but also for the probable and natural consequences that flow from its execution, even if those consequences were not originally intended.” United States v. Walker, 99 F.3d 439, 443 (D.C. Cir. 1996). Because an accessory is liable for all the natural and probable consequences of a principal’s actions and a principal is liable for the death of an unintended victim under § 53a-54a (a), an accessory who intentionally aids a principal in the murder of an intended victim with the intent to kill the intended victim is criminally hable for the resulting murder of an unintended victim under the doctrine of transferred intent. Thus, the trial court properly instructed the jury on the doctrine of transferred intent.

The defendant argues that State v. Hinton, supra, 227 Conn. 318, supports his claim that the doctrine of transferred intent does not apply here. We disagree.

In Hinton, the defendant was convicted of the attempted murder of an unintended victim. In the circumstances of Hinton, we declined to apply the doctrine of transferred intent and “conclude[d] that the transferred intent doctrine should not be applied to the crime of attempted murder.” (Emphasis added.) Id. We reasoned that “[p]roof of an attempt to commit a specific offense requires proof that the actor intended to bring about the elements of the completed offense. State v. Almeda, 189 Conn. 303, 309, 455 A.2d 1326 (1983). If the completed offense includes an intent to kill a particular person, the attempt to kill must also include an intent to kill that same person.” State v. Hinton, supra, 227 Conn. 316. We further reasoned in Hinton that the transferred intent doctrine is “not necessary” to prosecute a defendant for attempted murder because á defendant may be prosecuted for having an intent to kill and engaging in conduct aimed at killing the intended victim, without anyone actually having been killed. Id., 317.

We distinguish criminal liability for attempted murder from accessory liability because the attempt statute, § 53a-49, requires the intent to kill the specific victim of the attempt, whereas accessory liability does not. The murder statute, § 53a-54a, specifically provides for a transfer of the intent to kill, and we conclude that this transferred intent applies to accessory to murder liability. Furthermore, unlike attempted murder, liability as an accessory to murder requires that a murder occur. If someone other than the intended victim is killed, the defendant would escape liability as an accessory were it not for the transferred intent doctrine. Thus, the defendant’s claim that Hinton controls this case is unavailing.

Courts in other jurisdictions have extended the doctrine of transferred intent to accomplice liability for murder. In United States v. Sampol, 636 F.2d 621, 676-77 (D.C. Cir. 1980), two accomplices participated in a car bomb assassination where an unintended victim was killed. The United States Court of Appeals for the District of Columbia Circuit applied the doctrine of transferred intent to hold an “aider and abetter” liable for the murder of the unintended victim resulting from the principal’s acts. Id., 676. In People v. Lee, 211 App. Div. 2d 570, 571, 621 N.Y.S.2d 603 (1995), the Appellate Division of the New York Supreme Court held, without discussion, that a defendant who participated with a principal in an attempted shooting of a intended victim, was criminally responsible for the resulting shooting death of an unintended victim. We note that our Penal Code is modeled after the New York Penal Code. See State v. Desimone, 241 Conn. 439, 456-57, 696 A.2d 1235 (1997); State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990); State v. Hill, 201 Conn. 505, 516-17, 523 A.2d 1252 (1986).

Accordingly, we conclude that the trial court properly applied the doctrine of transferred intent to accessory liability for murder.

II

The defendant next claims that the trial court improperly admitted a hearsay statement in violation of his right to confront the witnesses against him. U.S. Const., amend. VI. We disagree.

The following additional facts are necessary to resolve this issue. At trial, the state attempted to question Beverley about an out-of-court statement made just prior to the shooting. The defendant objected on the ground that the statement was inadmissible hearsay. The state made an offer of proof in which Beverley testified that both the defendant and Portee had said “[i]f they seen [him] it was on,” referring to the intended victim, Carter. The state argued that the statement was admissible under the coconspirator’s statement exception to the hearsay rule. The trial court overruled the defendant’s objection, concluding that “[t]here is certainly enough evidence in this case independent of . . . Beverley’s testimony to establish the existence of a conspiracy involving [the defendant] and Mr. Portee and perhaps others. The statement would certainly fit into the time frame made pursuant to the conspiracy than in the course of it as they were driving towards the area where the incident happened.”

On direct examination by the state, Beverley testified that on the night of August 17, 1995, and into August 18,1995, he was in the car with Portee and the defendant on their way to 74 Orchard Street. Beverley testified that he had heard both the defendant and Portee say “ [i]f they seen [Carter] it was on.” According to Beverley, “it was on” meant that “[t]hey’d start shooting.” On cross-examination, Beverley later testified that he heard Portee make the statement and could not recall whether the defendant also had made the statement. The defendant made no motion to strike the testimony following the cross-examination.

We must first address whether the challenged statement was hearsay. “ ‘A statement made out-of-court that is offered to establish the truth of the matter contained in the statement is hearsay, and as such is inadmissible.’ State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993).” State v. King, 249 Conn. 645, 670, 735 A.2d 267 (1999). However, “[a] statement made out of court is not hearsay unless it is offered to establish the truth of the facts contained in the statement.” State v. James, 211 Conn. 555, 576, 560 A.2d 426 (1989).

Although we agree with the trial court that the statement was made while the conspiracy was ongoing and in furtherance of the conspiracy, the challenged statement was not hearsay because it was admissible as circumstantial evidence of the conspiracy, not to establish its truth. The statement made by Portee to the defendant was evidence of the agreement to shoot Carter, in which both the defendant and Portee had played a part. We recently upheld the admissibility of a statement from one coconspirator to another that “was itself evidence of the conspiracy . . . .” State v. Booth, 250 Conn. 611, 636, 737 A.2d 404 (1999), cert. denied sub nom. Connecticut v. Brown, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000). In this case, the statement had probative value without respect to its truth. The statement was admissible because it was made in the presence of and to the defendant while he and Portee went armed to the scene of the shootings. In State v. Gannon, 75 Conn. 206, 216, 52 A. 727 (1902), we upheld the admissibility of out-of-court statements made by others in accomplishing the purpose of a conspiracy as evidence “tending to prove an agreement to accomplish that purpose by such means.” In In re Jose M., 30 Conn. App. 381, 388, 620 A.2d 804, cert. denied, 225 Conn. 921, 625 A.2d 821 (1993), the Appellate Court correctly observed that Gannon allowed admission of the statements as “evidence of an agreement to accomplish the common purpose . . . .” See State v. Gannon, supra, 216. Accordingly, we conclude that the statement was properly admissible.

Ill

The defendant next claims that the trial court improperly denied his motions for judgment of acquittal as to the conspiracy to murder charge. At the close of the state’s case, the defendant moved for a judgment of acquittal based on insufficient evidence. The trial court denied the motion. After his conviction, the defendant renewed his motion for a judgment of acquittal, and the trial court again denied the motion. We are persuaded that the evidence was legally sufficient to support the jury’s verdict and, therefore, we reject the defendant’s claim.

“In reviewing a sufficiency of the evidence claim, 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. . . . State v. Delgado, [supra, 247 Conn. 620].” (Internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239, 745 A.2d 800 (2000).

The penal statute governing conspiracy liability, § 53a-48 (a), provides that “[a] person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.” We have held that “[t]o establish the crime of conspiracy under § 53a-48 . . . it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. The state must also show intent on the part of the accused that conduct constituting a crime be performed. . . . Further, the prosecution must show both that the conspirators intended to agree and that they intended to commit the elements of the underlying offense. . . . State v. Lewis, 220 Conn. 602, 606-607, 600 A.2d 1330 (1991).” (Internal quotation marks omitted.) State v. Booth, supra, 250 Conn. 657-58.

“Intent is generally proven by circumstantial evidence ‘because direct evidence of the accused’s state of mind is rarely available.’ State v. Greenfield, [228 Conn. 62, 77, 634 A.2d 879 (1993)]. . . . [I]ntent is often inferred from conduct; id., 76; and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. State v. Raguseo, [225 Conn. 114, 119, 622 A.2d 519 (1993)].” State v. Sivri, 231 Conn. 115, 126, 646 A.2d 169 (1994). We have determined that “[i]ntent to cause death may be inferred from the type of weapon used, the manner in which it was used, the type of wound inflicted and the events leading to and immediately following the death. . . . State v. Raguseo, supra, 120.” (Internal quotation marks omitted.) State v. Sivri, supra, 127.

We conclude that there was sufficient evidence for the jury to find that the defendant had agreed with Portee to commit the murder of Carter, that he did so with the intent that Carter be killed and that he carried out that agreement. The jury reasonably could have inferred from the evidence that the defendant and Portee had an agreement to shoot Carter and that the defendant intended the joint conduct that led to the killing of Moore and the wounding of Carter. Portee, the defendant’s brother, had a violent dispute with Carter that involved the defendant. In the course of that dispute, Carter had shot at the defendant twice in the days before the murder. On the night of the shooting that resulted in his conviction, the defendant had purchased a pistol and, with Portee, had obtained ammunition. While the defendant and Portee, who was also armed, drove to 74 Orchard Street, the statement was made, “[i]f they seen [Carter] it was on.” The defendant and Portee were armed with loaded handguns when they arrived at 74 Orchard Street, the apartment of a friend of Carter’s. Almost immediately upon encountering Carter, Portee began shooting. The defendant began shooting shortly thereafter. The defendant pursued Carter and continued to fire at him until the defendant’s pistol jammed. In the midst of the gun battle, in which Carter returned fire, Moore was killed by Portee. Carter was shot several times. From this evidence, the jury reasonably could have found that the defendant and Portee had agreed to kill Carter and that the defendant was aiding Portee in accomphshing that result by participating in a joint armed assault on Carter.

IV

The defendant’s final claim is that the trial court failed to put him to a plea on the charge of criminal possession of a pistol in violation of § 53a-217, infringing on his right to notice and to due process of law. We find no merit to this unpreserved claim.

The following facts are relevant to our resolution of this claim. On August 21, 1995, the defendant was arrested and first presented in court. On November 7, 1995, the defendant pleaded not guilty to the five counts enumerated in the original long form information, which included as count four a charge of criminal possession of a pistol in violation of § 53a-217, on which he also elected a jury trial. On February 20, 1998, the state filed a substitute long form information. In that information, the only change as to the criminal possession of a pistol charge was that it was renumbered as count five. The clerk put the defendant to plea on the first four counts. The defendant pleaded not guilty and elected to be tried by a jury for each of the four charges.

During jury selection, the trial court informed each panel of the charges, including the fifth count. The defendant did not object to the trial court’s including the fifth count. On February 27,1998, the state indicated that it would be presenting additional witnesses and documents in support of the charge of criminal possession of a pistol. At that time, the defendant took no action to correct the trial court’s earlier failure to put him to plea on that charge on February 20, 1998. On March 3, 1998, the first day of trial, the state filed a substitute information dated February 27, 1998, which corrected the time of the alleged offenses but did not make any other changes. The trial court read all five counts to the jury, including the count charging criminal possession of a pistol, and informed the jury that the defendant had entered not guilty pleas. Again, the defendant took no action as to the fifth count being read to the jury.

On March 4,1998, the state entered a written stipulation that the defendant had been “convicted on a C felony,” which is an element of the charge of criminal possession of a pistol, and the defendant, with the advice of counsel, agreed to that stipulation. Thereafter, the trial court instructed the jury on the charge of criminal possession of a pistol and referred to the prior written stipulation. The defendant did not take an exception to this instruction to the jury. The jury thereafter found the defendant guilty of criminal possession of a pistol as well as the other crimes with which he was charged.

On appeal, the defendant acknowledges that he did not properly preserve this claim and asks this court for review under State v. Golding, supra, 213 Conn. 239-40. We conclude that the clerk’s failure to put the defendant to plea again when the state filed a substitute long form information was not an error of constitutional magnitude. We have held previously that when a defendant has been put to plea on a charge, the failure to put the defendant to plea again on an amended information when the nature of the offense is not changed is not a constitutional error. See State v. Wallace, 181 Conn. 237, 243, 435 A.2d 20 (1980); State v. Jones, 166 Conn. 620, 629, 353 A.2d 764 (1974); State v. Lorusso, 151 Conn. 189, 191-92, 195 A.2d 429 (1963). Moreover, in light of the defendant’s actual notice of the charge, he has not demonstrated that he was harmed in any way by the inadvertent failure to put him to plea on that charge.

The judgment is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
      General Statutes § 53a-54a (a) provides in relevant part: “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 . . . .”
      General Statutes § 53a-49 (a) provides in relevant part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”
      General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
      General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”
      General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and (1) has been convicted of ... a class C felony, except a conviction under section 53a-87, 53a-152 or 53a-153 .... For the purposes of this section, ‘convicted’ means having a judgment of conviction entered by a court of competent jurisdiction.”

       The trial court’s instructions on accessory liability included the following: “Bearing in mind these instructions regarding accessory liability, murder and intent, under the first count charging the defendant with murder as an accessory the state must prove the following beyond a reasonable doubt: one, that the principal offender, Terry Portee, that is the actual perpetrator, intended to cause the death of a person; and two, acting with such intent that the principal offender caused the death of Nicole Moore; and three, the defendant either solicited, requested, commanded, importuned or intentionally aided Terry Portee who actually shot and killed Nicole Moore; and four, the defendant did so with the specific intent to cause the death of a person.” The defendant did not object or take exception to this charge.

       The defendant requested the following instruction on accessory liability: “The claim of accessory liability applies to the charge of murder and to all of the lesser included offenses, intentional manslaughter in the first degree, reckless indifference manslaughter in the first degree, and recldess manslaughter in the second degree. Accessory liability does not require that a defendant act with the conscious objective to cause the result described by statute. An accessory is liable if he acts intentionally, recklessly or with criminal negligence depending on the mental state required by the substantive crime and he intentionally aids another in the crime.”

       As set forth previously, the trial court made clear that such an intent to Mil was required and did not use the common design language.

       “[I]t is well established that a coconspirator’s [hearsay] statement, made while the conspiracy is ongoing and in furtherance of the conspiracy, is an exception to the hearsay rule and as such, does not violate the confrontation clause.” (Internal quotation marks omitted.) State v. Booth, 250 Conn. 611, 634, 737 A.2d 404 (1999), cert. denied sub nom. Connecticut v. Brown, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed. 2d 471 (2000).

       We uphold the admission of this statement on a basis other than that relied upon by the trial court. We have held previously that “this court is free to sustain a ruling on a different basis from that relied upon by the trial court. See State v. Vincent, 194 Conn. 198, 204 n.8, 479 A.2d 237 (1984); Favorite v. Miller, 176 Conn. 310, 317, 407 A.2d 974 (1978); W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 36.” State v. John, 210 Conn. 652, 679-80, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989).

       The defendant does not specify whether this claim is raised under the federal or the state constitution.

       On November 7, 1995, the defendant was charged with the following: count one, murder in violation of §§ 53a-54a and 53a-8; count two, attempt to commit assault in the first degree in violation of §§ 53a-49 (a) (2) and 53a-59 (a) (1); count three, use of a firearm in the commission of a felony in violation of General Statutes § 53-202k; count four, criminal possession of a pi stol in violation of§ 53a-217; and count five, carrying a pistol without a permit in violation of § 29-35.

       On February 20, 1998, the state filed a substitute information form dated February 19, 1998, which charged the defendant with the following: count one, murder in violation of §§ 53a-54a and 53a-8; count two, attempt to commit murder in violation of §§ 53a-49 (a) (2) and 53a-54a; count three, conspiracy to commit murder in violation of §§ 53a-48 and 53a-54a; count four, carrying a pistol without a permit in violation of § 29-35; and count five,, criminal possession of a pistol in violation of § 53a-217. In addition, the state filed a part B information, which charged the defendant with the use of a firearm in the commission of a felony in violation of General Statutes § 53-202k.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EDWARD P. VALLERIE ET AL. v. TOWN OF STONINGTON
    (SC 16172)
    McDonald, C. J., and Norcott, Palmer, Sullivan and Vertefeuille, Js.
    Argued February 18
    officially released May 30, 2000

      Benson A. Snaider, for the appellants (plaintiffs).

      Thomas J. Londregan, with whom was Jeffrey T. Londregan, for the appellee (defendant).
   Opinion

PER CURIAM.

The plaintiffs, Edward P. Vallerie and Norwest Marine, Inc. (Norwest), appeal from the judgment of the trial court denying their application for relief under General Statutes § 12-119 and affirming the determination of the tax assessor of the town of Stonington that the floating docks and finger piers at a marina located at 7 River Road in Stonington were real, rather than personal, property. The property at 7 River Road had been owned by Vallerie and was purchased by Norwest on October 20, 1995. We affirm the trial court’s judgment.

The following facts are relevant to this appeal. On July 22, 1996, Norwest and Vallerie brought an application for relief against the town of Stonington, pursuant to § 12-119, alleging that the tax assessor’s October 1, 1994 and October 1, 1995 valuations of the property in question were manifestly excessive and contrary to law. In that application, the plaintiffs claimed that the tax assessor illegally valued personal property as real property by including floating docks and finger piers at their property as part of the realty. The trial court rejected the plaintiffs’ claim, finding that the finger piers and floating docks were fixtures on the property and, therefore, part of the real estate.

The plaintiffs do not quarrel with the trial court’s legal conclusion that “[i]n determining whether the docks and [finger piers] are personalty or realty we must first look at whether the docks and [finger piers] are fixtures. If they are fixtures, the personalty becomes part of the property and they are considered realty. Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 215-16, 477 A.2d 988 (1984). To constitute a fixture, we must look at the character of how the personalty was attached to real estate, the nature and adaptation of the docks and [finger piers] to the uses and purposes to which they were appropriated at the time the annexation was made, and whether the annexer intended to make a permanent accession to the realty. Id. The character of the personal property attached to the real estate is determined at the time that the property is attached to the real estate. Id.”

The plaintiffs do, however, contest the trial court’s determination that the docks and finger piers are fixtures. We consider that determination a conclusion of fact. “[W]here the factual basis of the [trial] court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). It is not our function to retry cases. New Haven Savings Bank v. West Haven Sound Development, 190 Conn. 60, 70, 459 A.2d 999 (1983).” (Internal quotation marks omitted.) Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 193 Conn. 217. Accordingly, we overturn the trial court’s factual conclusions only if they are clearly erroneous. Id., 216-17.

We conclude that the trial court’s determination that the floating docks and finger piers are real property was not clearly erroneous. The court found the following facts: “The docks have fresh water and electricity available to boats using the slips. The river has a depth of ten feet at the subject premises. The docks and the slips remain in the water throughout the year. The docks are used to get to the [finger piers] which contain the boat slips. The slips are on open water. The docks and slips float up and down with the tide but are kept in place with seventy to eighty pilings in the river. The docks are attached to bulkheads which are imbedded in concrete. The docks contain utility stanchions with lights that act as street lights. The stanchions also contain lines for water, electricity and telephone service. The water lines are turned off in the winter. There are a total of 133 slips attached to four docks. The docks are periodically removed, repaired and replaced. The economic life of a dock is about fifteen year’s.

“Prior to October 1, 1996, the owner of the subject property did not declare the docks and [finger piers] at the marina as personal property. For the list of October 1, 1996, [Norwest] filed a list of personal property which contained the docks and [finger piers] at the marina. [Norwest] also filed an amended declaration of personal property for October 1, 1995. The town’s assessor considered the docks and [finger piers] to be an integral part of the real estate comprising the marina. The assessor considered the docks to be an improvement to the real estate, and, therefore, part of the real estate, not personal property.”

The trial court concluded that: “First, there was no evidence presented to us that the annexer ever claimed that the docks and [finger piers] were personalty as did Norwest when it acquired title in 1995. There was also no evidence presented that the annexer meant the docks and piers to be temporary structures. The main business conducted on the subject premises is that of a marina as a going concern. The marina business at the premises is structured on having docks and finger piers attached to the land by bulkheads and concrete walks, running out into the Pawcatuck River, containing stanchions providing amenities such as electricity and water to the slips, supported by pilings driven into the bed of the river. All of these factors cause us to conclude that the intent of the annexer was to make the docks and [finger piers] a permanent fixture to the land.”

We conclude that the trial court applied the correct principles of law to the question before it. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., supra, 193 Conn. 215-16. After examining the trial evidentiary record and exhibits, we further conclude that there was substantial evidence to support the trial court’s factual findings, and that the court’s conclusion that the docks and finger piers were realty was factually supported and logically correct.

The judgment is affirmed.

       General Statutes § 12-119 provides in relevant part: “When it is claimed that a tax has been laid on property not taxable in the town or city in whose tax list such property was set, or that a tax laid on property was computed on an assessment which, under all the circumstances, was manifestly excessive and could not have been arrived at except by disregarding the provisions of the statutes for determining the valuation of such property, the owner . . . prior to the payment of such tax, may, in addition to the other remedies provided by law, make application for relief to the superior court for the judicial district in which such town or city is situated. ... In all such actions, the Superior Court shall have power to grant such relief upon such terms and in such manner and form as to justice and equity appertains, and costs may be taxed at the discretion of the court. . . .”


text:
    STATE OF CONNECTICUT v. ANGEL OCASIO
    (SC 16049)
    McDonald, C. J., and Norcott, Katz, Palmer and Sullivan, Js.
    Argued March 16
    officially released May 30, 2000

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, senior assistant state’s attorney, for the appellant (state).

      Neal Cone, assistant public defender, for the appel-lee (defendant).
   Opinion

PER CURIAM.

The issues on this certified appeal are: (1) “Did the Appellate Court properly conclude that literal, rather than substantial, compliance is required in order for a defendant’s plea of guilty to be valid under Practice Book § 39-20?”; and (2) “If the answer to the first question is no, was there substantial compliance with Practice Book § 39-20 [in this case]?” State v. Ocasio, 247 Conn. 947, 723 A.2d 322 (1998). We answer the first question in the negative and the second question in the affirmative. Accordingly, we reverse the judgment of the Appellate Court.

The facts of this case as set forth in the opinion of the Appellate Court are as follows: “On April 12, 1995, the state filed a five count information to which the defendant [Angel Ocasio] pleaded not guilty. On May 22, 1996, the day that jury selection began, the state filed a fifteen count substitute information. On May 23, 1996, pursuant to a plea agreement, the state filed a substitute information charging the defendant with one count of conspiracy to sell narcotics in violation of [General Statutes] §§ 21a-277 (a) and 53a-48 and one count of violating the Corrupt Organizations and Racketeering Activity Act in violation of [General Statutes] § 53-395 (c), to which the defendant entered a plea of guilty.

“The trial court canvassed the defendant, pursuant to Practice Book §§711 through 722, now §§ 39-18 through 39-28, and asked, ‘[I]s this plea voluntary?’ to which the defendant stated, ‘Yes.’ Further, the trial court informed the defendant of the impact of pleading guilty on his constitutional rights and then asked, ‘is that what you want, sir,’ to which the defendant responded, ‘Yes.’

“The trial court accepted the defendant’s plea of guilty and found it was ‘entered knowingly, intelligently and voluntarily, with a full understanding of the offenses charged, as well as the possible consequences thereof, and after adequate and effective assistance of counsel.’ ” State v. Ocasio, 50 Conn. App. 748, 749-50, 718 A.2d 1018 (1998).

“On July 19, 1996, just prior to sentencing, the defendant’s attorney informed the court that the defendant wanted to withdraw his guilty plea. The court refused to hear this motion until the court could obtain a copy of the transcript from the plea proceeding. The court encouraged the defendant’s attorney to file a written motion to withdraw the plea. This was not done. Also on July 19, 1996> the defendant’s attorney orally moved to withdraw his appearance. That motion was denied by the court. Subsequently, the defendant’s attorney filed a written motion to withdraw his appearance. That motion was also denied by the court.” Id., 750 n.2.

“On August 23, 1996, just prior to sentencing, the defendant made a second oral motion to withdraw his guilty plea. The defendant’s attorney advised the trial court that the basis for the request to withdraw the plea was that the defendant ‘was confused; he didn’t realize the consequences, apparently, of the plea at the time it was entered . . . [and] he feels that the pressure was a little too great. He feels that . . . there were other matters that were also impinging his reasons for making a knowing decision at the time.’ The trial court denied [the] motion, finding that the court ‘has heard nothing ... to even permit an evidentiary hearing, much less grant an oral motion.’ ” Id., 750-51.

The defendant appealed to the Appellate Court claiming that the trial court improperly had accepted his guilty plea because it failed to ensure that the plea was voluntary, as required by Practice Book § 39-20, formerly Practice Book § 712. The Appellate Court agreed, holding that the trial court improperly had failed to inquire if the defendant’s guilty plea was “ ‘the result of force or threats or of promises apart from a plea agreement’ ”; id., 756; and that that failure required reversal of the trial court’s judgment. Id., 757. We granted the state’s petition for certification; State v. Ocasio, supra, 247 Conn. 947; and we now reverse the judgment of the Appellate Court.

This court has held repeatedly that Practice Book § 39-19 requires only substantial compliance. See State v. Domian, 235 Conn. 679, 689, 668 A.2d 1333 (1996) (strict adherence to § 39-19 not constitutionally mandated); id., 688 (test is whether, in light of all circumstances, trial court’s failure to comply rendered guilty plea unknowing or involuntary); State v. Badgett, 200 Conn. 412, 418, 512 A.2d 160, cert. denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986) (literal compliance with § 39-19 not required); State v. Suggs, 194 Conn. 223, 226-27, 478 A.2d 1008 (1984) (deviation from specific requirements of § 39-19 does not require automatic reversal); State v. Godek, 182 Conn. 353, 360, 438 A.2d 114 (1980), cert. denied, 450 U.S. 1031, 101 S. Ct. 1741, 68 L. Ed. 2d 226 (1981) (where there has been substantial compliance, failure to comply with each and every requirement of § 39-19 does not require automatic vacating of defendant’s plea).

We can see no reason to apply a different standard of compliance to § 39-20. The Appellate Court reasoned that, Practice Book § 39-27 (l) provides that compli-anee with § 39-19 need only be “substantial” for a guilty plea to be valid; State v. Ocasio, supra, 50 Conn. App. 752-53; and the substantial compliance standard is inappropriate for § 39-20, because § 39-27 (2) contains no such qualifier. Section 39-27 (2) provides simply that a guilty plea may be withdrawn if “[t]he plea was involuntary . . . .” The voluntariness of the plea, however, does not depend on the court’s strict compliance with § 39-20.

As noted in Judge Shea’s dissent from the Appellate Court’s opinion, both § 39-19 and § 39-20 relate to the waiver of significant constitutional rights by a defendant in a criminal case. State v. Ocasio, supra, 50 Conn. App. 758 (Shea, J., dissenting). We stated in State v. Badgett, supra, 200 Conn. 418, that “[a] defendant can voluntarily and understandingly waive these rights without literal compliance with the prophylactic safeguards of Practice Book [§§ 39-19 and 39-20].” The defendant argues that this statement was dictum. We need not decide whether the statement was dictum, however, because we hold in this case that only substantial, rather than literal, compliance with § 39-20 is required in order to validate a defendant’s plea of guilty.

We further conclude that the test for substantial compliance is whether, in light of all of the circumstances, the trial court’s literal compliance with § 39-20 would have made any difference in the trial court’s determination that the plea was voluntary. See State v. Domian, supra, 235 Conn. 688 (test for substantial compliance with § 39-19 is whether accurate information would have made any difference in defendant’s decision to enter guilty plea). In light of all of the circumstances of the defendant’s guilty plea, we conclude that the trial court substantially complied with § 39-20. We note that the trial court thoroughly canvassed the defendant before accepting his plea and that the defendant explicitly stated that his plea was voluntary. The record contains nothing to suggest that the defendant would have responded affirmatively if the trial court had asked whether his guilty plea was the result of force or threats or promises apart from the plea agreement. He made no claim of any threats or promises, and he has not made such a claim on appeal.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to affirm the judgment of the trial court.

       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.”
      General Statutes § 53a-48 provides in relevant part: “(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. . . .”

       General Statutes § 53-395 (c) provides: “It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity or through the collection of an unlawful debt.”

       “The relevant portion of the colloquy was as follows:
      'The Court: And, again, have you had any difficulties in understanding the questions that I’ve asked you or in your giving the answers to those questions?
      ‘The Defendant: No, Your Honor, everything is okay.
      ‘The Court: And do you fully understand, Mr. Ocasio, that if I accept these guilty pleas . . . that you will not be permitted to withdraw these pleas, you’ll be sentenced accordingly, and you will have given up those constitutional rights that I have already discussed with you?
      ‘The Defendant: Yes.’ ” State v. Ocasio, 50 Conn. App. 748, 750 n.1, 718 A.2d 1018 (1998).

       For convenience, we refer in this opinion to the current numbers of Practice Book sections, rather than those in use at the time in issue. Practice Book § 39-20 provides: “The judicial authority shall not accept aplea of guilty or nolo contendere without first determining, by addressing the defendant personally in open court, that the plea is voluntary and is not the result of force or threats or of promises apart from a plea agreement. The judicial authority shall also inquire as to whether the defendant’s willingness to plead guilty or nolo contendere results from prior discussions between the prosecuting authority and the defendant or his or her counsel.”

       Practice Book § 39-19 provides: “The judicial authority shall not accept the plea without first addressing the defendant personally and determining that he or she fully understands:

        “(1) The nature of the charge to which the plea is offered;
      “(2) The mandatory minimum sentence, if any;
      “(3) The fact that the statute for the particular offense does not permit the sentence to be suspended;
      “(4) The maximum possible sentence on the charge, including, if there are several charges, the maximum sentence possible from consecutive sentences and including, when applicable, the fact that a different or additional punishment may be authorized by reason of a previous conviction; and
      “(5) The fact that he or she has the right to plead not guilty or to persist in that plea if it has already been made, and the fact that he or she has the right to be tried by a jury or a judge and that at that trial the defendant has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.”

       Practice Book § 39-27 provides: “The grounds for allowing the defendant to withdraw his or her plea of guilty after acceptance are as follows:
      “(1) The plea was accepted without substantial compliance with Section 39-19;
      “(2) The plea was involuntary, or it was entered without knowledge of the nature of the charge or without knowledge that the sentence actually imposed could be imposed;
      “(3) The sentence exceeds that specified in a plea agreement which had been previously accepted, or in a plea agreement on which the judicial authority had deferred its decision to accept or reject the agreement at the time the plea of guilty was entered;
      “(4) The plea resulted from the denial of effective assistance of counsel;
      “(5) There was no factual basis for the plea; or
      “(6) The plea either was not entered by a person authorized to act for a corporate defendant or was not subsequently ratified by a corporate defendant.”


author: NORCOTT, J.

text:
    JESSE MILES, TRUSTEE v. DANIEL A. FOLEY ET AL.
    (SC 16210)
    Borden, Norcott, Palmer, Sullivan and Vertefeuille, Js.

      Argued March 15
    officially released June 6, 2000

      Robert A. Fuller, for the appellant (plaintiff).

      Michael J. Cacace, with whom were Ronald E. Kowalski II and Aamina Ahmad, for the appellees (intervening defendant Phillip L. Knapp et al.).
   Opinion

NORCOTT, J.

The dispositive issue in this appeal is whether a planning and zoning commission’s rejection of a subdivision application constitutes action within the meaning of General Statutes § 8-26. This is a mandamus action brought by the plaintiff, Jesse Miles, trustee, against the defendants, the New Canaan planning and zoning commission (commission), its former chairman, James H. Bennett, and the town planner, Daniel A. Foley, and the intervening defendants, Phillip L. Knapp, James Rae, Jane Delano and Warren Delano, who own properties adjacent to and across the street from the property owned by the plaintiff. The plaintiff claims that he is entitled to mandamus because the commission’s rejection of and subsequent refusal to process his subdivision application resulted in an automatic approval of the application as a matter of law under § 8-26. The trial court, Mints, J., concluded that the commission’s rejection of the plaintiffs application constituted action within the meaning of § 8-26 and that, therefore, the automatic approval doctrine of § 8-26 was inapplicable. The trial court further determined that an administrative appeal was the proper remedy for the plaintiff, not an action in mandamus.

The Appellate Court affirmed the trial court’s judgment. Miles v. Foley, 54 Conn. App. 645, 647, 736 A.2d 180 (1999). We granted the plaintiffs amended order for petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that the plaintiff was not entitled to a judgment of mandamus that the defendant commission approve the plaintiffs subdivision?” Miles v. Foley, 251 Conn. 925, 739 A.2d 1248 (1999). We affirm the judgment of the Appellate Court.

The following facts, as set forth by the Appellate Court, are relevant to this appeal. “On May 20, 1996, the plaintiffs agent delivered a subdivision application" to the commission in accordance with § 8-26. The following day, at the regular commission meeting, the commission discussed the plaintiff’s proposed subdivision application and unanimously voted to reject the application because it was premature. On August 8, 1996, the plaintiffs attorney sent a letter to the commission demanding that it issue a certificate of approval pursuant to § 8-26 because more than sixty-five days [had] passed. When the commission refused this demand, the plaintiff brought a mandamus action.

“Subsequently, the plaintiff moved for summary judgment claiming that ‘there is no genuine issue of material fact and that the plaintiff is entitled to a judgment of mandamus as a matter of law.’ The defendants also moved for summary judgment claiming that a writ of mandamus cannot be granted where the party does not have a clear right to have the duty performed.

“On July 7,1997, the trial court issued an order denying the plaintiffs motion for summary judgment and granting the defendants’ motions for summary judgment. The reason that the trial court denied the plaintiffs motion for summary judgment was that it found that the vote of the commission rejecting the plaintiffs subdivision application was action within the meaning of § 8-26, as interpreted by the Supreme Court in Winchester Woods Associates v. Planning & Zoning Commission, 219 Conn. 303, 311-12, 592 A.2d 953 (1991). Therefore, the trial court reasoned that the rejection precluded the automatic approval of the subdivision application. The trial court granted the defendants’ motions for summary judgment because the plaintiff failed to demonstrate that the commission did not act within sixty-five days, as required for automatic approval pursuant to § 8-26 and, therefore, the trial court reasoned that the mandamus action did not lie.” Miles v. Foley, supra, 54 Conn. App. 647-48.

I

We begin with the appropriate standard of review. “The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding amotion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994). . . . Hertz Corp. v. Federal Ins. Co., 245 Conn. 374, 380-81, 713 A.2d 820 (1998).” (Citation omitted; internal quotation marks omitted.) Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 368, 746 A.2d 753 (2000).

II

The plaintiff claims that the trial court improperly concluded that he was not entitled to a judgment of mandamus. He argues that the commission’s rejection of the subdivision application does not constitute action within the meaning of § 8-26 and, therefore, the commission failed to act within the statutorily prescribed sixty-five day time limit of General Statutes § 8-26d (b). The plaintiff claims that, as a result, mandamus lies because the automatic approval of § 8-26 has been activated. The plaintiff argues that § 8-26 specifically limits the action of the commission to “approve, modify and approve, or disapprove” an application.

The defendants argue that our holding in Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 303, is determinative of this issue and that the commission’s unanimous vote to reject the application does constitute action pursuant to § 8-26. Consequently, the defendants claim, the automatic approval of § 8-26 is not applicable and the plaintiff is not entitled to a judgment of mandamus. We agree with the defendants.

In Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 305, this court considered whether a plaintiff applicant was entitled to automatic approval when the defendant commission had voted not to accept the application because an appeal of the commission’s denial of the same, earlier submitted application was still pending in Superior Court. We concluded that the plaintiff was not entitled to automatic approval because the commission had acted within the sixty-five day time period prescribed by § 8-26 by its vote not to accept the plaintiffs application. Id., 313-14. “Under §§ 8-26 and 8-26d (b), the failure of the commission to ‘approve, modify and approve, or disapprove’ a subdivision or resubdivision application, on which no hearing is held, within sixty-five days after receipt of such application results in the sanction of automatic approval. See Merlo v. Planning & Zoning Commission, 196 Conn. 676, 682, 495 A.2d 268 (1985). Section 8-26d (c) defines the day of receipt of an application as ‘the day of the next regularly scheduled meeting of such commission . . . immediately following the day of submission to such . . . commission ... or thirty-five days after submission, whichever is sooner.’ ” Winchester Woods Associates v. Planning & Zoning Commission, supra, 312.

In Winchester Woods Associates, the commission had voted not to accept the plaintiffs application because, it claimed, “this was the second application on the same piece of property, the first application was pending in litigation and the commission wished to preclude the automatic approval of the second application due to lack of action within the sixty-five day period.” Id., 313. We determined that the commission had failed to consider whether the second application differed in any substantive way from the application that had been submitted earlier and was now the subject of the pending appeal. Id. Accordingly, we concluded that “[t]he commission’s vote not to accept the plaintiffs application at its June meeting, although based upon an incomplete examination of the factors to be considered in the exercise of its discretion and therefore an abuse of that discretion, was nevertheless an action by the commission.” Id.

We conclude that Winchester Woods Associates is dispositive of the present case. Here, there is no dispute that the plaintiffs subdivision application was delivered to the commission on May 20, 1996, and that it was discussed at the commission’s next regularly scheduled meeting on May 21, 1996. At that meeting, the commission unanimously voted to reject the application. As in Winchester Woods Associates, the substance of the commission’s conduct here is irrelevant. What is relevant is that there was conduct. In Winchester Woods Associates, we concluded that the commission’s action — although erroneous in that it was an abuse of the commission’s discretion — was, indeed, action that, for the purposes of § 8-26, precluded automatic approval. Id.

The purpose of § 8-26 is to ensure expeditious action on the part of municipal planning commissions. “It is the ‘failure of the commission to act’ upon an application within the time provided that results in approval by operation of law under § 8-26. . . . We have ascertained that ‘[t]he obvious intention of the legislature in using this language was to ensure prompt and expeditious action on subdivision applications for the protection of the subdivider.’ Finn v. Planning & Zoning Commission, [156 Conn. 540, 544, 244 A.2d 391 (1968)]. We have also observed that this statutory purpose ‘will best be facilitated if subdivision applicants know with certainty that a definite course of statutory action has been taken by a commission, selling in motion clear avenues of appeal., Carpenter v. Planning & Zoning Commission, [176 Conn. 581, 597, 409 A.2d 1029 (1979)].” (Emphasis altered.) Merlo v. Planning & Zoning Commission, supra, 196 Conn. 683-84.

In Merlo, we concluded that the commission had acted in accordance with § 8-26 when, at its regularly scheduled meeting, it moved to approve the plaintiffs application subject to three stipulations. Id., 679. After the ensuing discussion, the motion was disapproved. A legal notice was later published stating that the “ ‘motion to approve FAILED TO CARRY: Therefore this application was DENIED.’ ” Id. We reversed the judgment of the Appellate Court, concluding that “the defeat of the motion to approve the application subject to the stipulations proposed by the movant constituted ‘disapproval’ of the application within the intent of the statute.” Id., 682. Our focus in Merlo properly was on the action of the commission, not the specific nature of that action. Our focus here is similarly placed.

We conclude that, because the purpose of § 8-26 is to expedite the application process for the subdivider and to ensure that the applicant knows the status of his or her application as quickly as possible; see id., 683-84; the commission’s action to reject the application fulfills that purpose. Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 303, is consistent with this conclusion. It does not follow, as the plaintiff and the dissenting opinion of the Appellate Court assert, that since “§ 8-26 did not prohibit the commission from reaching the merits of the plaintiffs subdivision application despite the pending appeal,” that the commission is then required to reach the merits of the application. Miles v. Foley, supra, 54 Conn. App. 661 (Lavery, J., dissenting). What is required, pursuant to § 8-26, is expeditious action on the part of the commission to enable the applicant to know the status of an application in a timely manner. That was satisfied here.

As we indicated in Winchester Woods Associates v. Planning & Zoning Commission, supra, 219 Conn. 313, it is possible for the commission’s action to satisfy § 8-26 and still be void as an abuse of the commission’s discretion. In the present case, we need not reach the issue of whether the commission’s action was an abuse of its discretion. The only certified issue before us is whether the commission’s response constituted action within the meaning of § 8-26. Because we conclude that it does, the automatic approval doctrine of § 8-26 is not activated.

Ill

We now turn to the question of whether mandamus is an appropriate remedy. Since we have concluded that the automatic approval of § 8-26 is inapplicable in the present case, it is clear that a writ of mandamus does not lie.

“Mandamus is an extraordinary remedy, available in limited circumstances for limited purposes. ... It is fundamental that the issuance of the writ rests in the discretion of the court, not an arbitrary discretion exercised as a result of caprice but a sound discretion exercised in accordance with recognized principles of law. . . . That discretion will be exercised in favor of issuing the writ only where the plaintiff has a clear legal right to have done that which he seeks. . . . The writ is proper only when (1) the law imposes on the party against whom the writ would run a duty the performance of which is mandatory and not discretionary; (2) the party applying for the writ has a clear- legal right to have the duty performed; and (3) there is no other specific adequate remedy.” (Citations omitted; internal quotation marks omitted.) Miles v. Foley, supra, 54 Conn. App. 653.

As the Appellate Court correctly concluded, there was no approval of the plaintiffs subdivision application pursuant to the automatic approval doctrine of § 8-26. Therefore, the plaintiff is not entitled to “a clear legal right to have the duty performed . . . .” (Internal quotation marks omitted.) Id. Without the satisfaction of this crucial prong, the extraordinary writ of mandamus was not compelled.

The plaintiff would have been entitled to an administrative appeal of the commission’s decision not to process the application. The plaintiffs argument that “an appeal would be a meaningless and time consuming round trip from the [c]ommission to the Superior Court and back, as opposed to the effective and expeditious remedy of mandamus” is neither a compelling argument in favor of mandamus, nor an argument challenging the appropriateness of an appeal. If such an appeal had been timely and the Superior Court considered the acMon of the commission to be improper, it would have indeed returned the application to the commission with orders to process it differently. It is that very action, however, appealable to the Superior Court, that precludes the automatic approval of § 8-26 and the writ of mandamus sought by the plaintiff. Accordingly, it is the appellate process that is the appropriate and effective vehicle for the plaintiff.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 8-26 provides in relevant part: “All plans for subdivisions and resubdivisions . . . shall be submitted to the commission with an application in the form to be prescribed by it . . . The commission shall approve, modify and approve, or disapprove any subdivision or resubdivision application or maps and plans submitted therewith . . . within the period of time permitted under section 8-26d. Notice of the decision of the commission shall be published in a newspaper having a substantial circulation in the municipality . . . within fifteen days after such decision has been rendered. . . . Such notice shall be a simple statement that such application was approved, modified and approved or disapproved, together with the date of such action. 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. The grounds for its action shall be stated in the records of the commission. No planning commission shall be required to consider an application for approval of a subdivision plan while another application for subdivision of the same or substantially the same parcel is pending before the commission. For the purposes of this section, an application is not ‘pending before the commission’ if the commission has rendered a decision with respect to such application and such decision has been appealed to the Superior Court. If an application involves land regulated as an inland wetland or watercourse under the provisions of chapter 440, the applicant shall submit an application to the agency responsible for administration of the inland wetlands regulations no later than the day the application is filed for the subdivision or resubdivision. The commission shall not render a decision until the inland wetlands agency has submitted a report with its final decision to such commission. In making its decision the commission shall give due consideration to the report of the inland wetlands agency. ...”

       Throughout this opinion, the municipal defendants and the intervening defendants will be referred to collectively as the defendants.

       “The commission noted that the subdivision property ‘had recently been the subject of a hearing before the environmental commission, and that their decision had been appealed to the Superior Court.’ Thereafter, the commission ‘unanimously voted to reject the application since it is premature, and if a zoning permit were requested upon approval of such a subdivision, it would be denied under § 60-3.12.A. (2)’ of the New Canaan zoning regulations.” Miles v. Foley, supra, 54 Conn. App. 647-48 n.4.

       General Statutes § 8-26d (b) provides in relevant part: “A decision on an application for subdivision approval, on which no hearing is held, shall be rendered within sixty-five days after receipt of such application. . . .”

       We reject the plaintiffs argument that subsequent revision to § 8-26 has served to negate our holding in Winchester Woods Associates. Public Acts 1992, No. 92-191, the legislative revision in question, focused only on the commission’s obligation to consider an application while a similar or identical application was already pending before the commission and not whether certain decisions by the commission constituted “action” for the purposes of § 8-26. As the legislative history of Public Act 92-191 reveals, “[t]his bill is dealing with zoning statutes of your municipalities. For all subdivision. And what it says is that if somebody doesn’t like the decision of the zoning authority and they take it to court, while it is waiting to be processed in the court system, they can take and file another application for a different subdivision. And I guess they could do that over and over again. That is what this file copy is all about. It is only three or four lines. That is what it says. Before Iho process is complete, you can have another bite, or a couple of bites, maybe three bites of the apple.” 35 H.R. Proc., Pt. 9, 1992 Sess., p. 2846, remarks of Representative Richard O. Belden.